INDEPENDENT NATIONAL ELECTORAL COMMISSION v. SENATOR ADEMOLA NURUDEEN ADELEKE & ORS
(2019)LCN/13226(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of May, 2019
CA/A/EPT/259/2019
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Appellant(s)
AND
1. SENATOR ADEMOLA NURUDEEN ADELEKE
2. PEOPLE’S DEMOCRATIC PARTY
3. ADEGBOYEGA ISIAKA OYETOLA
4. ALL PROGRESSIVES CONGRESS Respondent(s)
RATIO
WHETHER OR NOT HE WHO ASSERTS MUST PROVE
It is trite that the responsibility of proving any fact rests on the party who asserts same – Section 131 of the Evidence Act, 2011 (as amended) and Ojoh V Kamal (2005) 18 NWLR (Pt. 958) 523, 565. PER SANKEY, J.C.A.
THE DOCTRINE OF WAIVER
On what the doctrine of waiver entails, the Supreme Court, per Tobi, JCA (as he then was), in the case of Caribbean Trading & Fidelity Corp. V NNPC (1992) 7 NWLR 252, 161 held thus:
?Waiver carries some form of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of law will hold that he has waived his right.?
See alsoUdonte V Bassey (1999) 5 NWLR (Pt. 604) 61, 68-69. Thus, implicit in the principle of waiver is that a person will not be allowed to complain against an irregularity which he himself has accepted and waived or acquiesced in. PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): The Independent National Electoral Commission (hereinafter referred to as INEC) conducted election into the office of the Governor of Osun State on 22nd September, 2018, with Senator Ademola Adeleke contesting on the platform of the Peoples Democratic Party (PDP) and Adegboyega Isiyaka Oyetola contesting on the platform of the All Progressives Congress (APC). Forty-six (46) other Political Parties sponsored candidates at the election. At the conclusion of the election on 22nd September, 2018, the Appellant credited the PDP candidate with 254,698 votes and the APC candidate with 254,345 votes.
In view of the narrow margin between the two candidates with the highest number of votes and the assertion that the elections were inconclusively held in 7 Polling Units spread across 4 Local Government Areas, where the number of registered voters was more than the margin of lead between the two Parties, the Appellant declared the election inconclusive and scheduled a supplementary election for 27th September, 2018. At the conclusion of the supplementary election, the APC candidate
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polled a total of 255,505 votes as opposed to the PDP candidate who polled 255,023 votes. The APC candidate, id est the 3rd Respondent herein, was declared the winner of the election and returned elected.
Dissatisfied by this outcome, the PDP candidate, to wit: the Petitioner, along with his Party the PDP, filed a Petition before the Governorship Election Tribunal of Osun State, (hereinafter referred to as ?the Tribunal?), on 16th October, 2018 wherein they complained on 3 grounds as set out in Paragraph 15(i)-(iii) of the Petition (at pages 9-10 Vol. I of the Record of Appeal) as follows:
?15. Your Petitioners aver that the grounds for this Petition are as follows:
i. That the 2nd Respondent was not duly elected by a majority of the lawful votes cast at the Governorship election in Osun State held on September 22, 2018 and the Rerun election held on September 27, 2018.
ii. That the declaration and return of the 2nd Respondent as the elected Governor of Osun State is invalid by reason of substantial non-compliance with the provisions of the Electoral Act 2010 (as amended) during the Governorship Rerun election in Osun
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State of September, 2018.
iii. That the declaration and return of the 2nd Respondent as Governor elect of Osun State is invalid by reason of corrupt practices during the Governorship Rerun election in Osun State of September 27, 2018.?
The reliefs sought by the Petitioners against the Respondents, jointly and severally, are set out at pages 74 to 78 Vol. I of the Record of Appeal as follows:
I. ?That it may be determined and thus declared that the 2nd Respondent Adegboyega Isiaka Oyetola was not duly elected and/or returned by a majority of lawful votes cast in the Osun State Governorship election held on Saturday 22nd September and the Rerun election of Thursday, 27th September, 2018 and therefore his declaration and return as the Governor elect of Osun State is null, void and of no effect whatsoever;
II. That it may be determined and thus declared that the 1st Petitioner having fulfilled the requirements of Section 179(2) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, in respect of the Osun State Governorship Election held on 22nd September, 2018, is the winner by 353 votes margin in the
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said Election having scored a total votes of 254,698, while 2nd Respondent scored 254,345 votes.
III. That it may be determined and thus declared that the 1st Petitioner having satisfied the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and the Electoral Act, 2010, as amended, in respect of the election of 22nd September, 2018, the act of the Respondents in ordering a rerun election of 27th September, 2018 is invalid, void and of no effect whatsoever howsoever.
IV. That it may be determined and thus declared that the Rerun Election held on 27th September, 2018 is invalid by reason of corrupt practices, substantial non-compliance and offences against the provisions of the Electoral Act, 2010 (as amended).
V. That it may be determined and thus declared that the rerun election of 27th September, 2018 and the return of the 1st Respondent are voided by acts which clearly violate and are in breach of the provisions of the Electoral Act, 2010 (as amended), including but not limited to rigging and manipulation of election results, unprecedented acts of violence, unlawful allocation of votes, thuggery and coercion
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of voters, committed at towns, villages and other communities, wards and Polling Units aforementioned in Osun State as well as unlawful interference in the electoral process by the Respondents.
VI. That it may be determined and thus declared that the results of the rerun Governorship election of Osun State held on Thursday 27th September, 2018 as declared and announced by the 3rd Respondent be nullified and to be of no effect whatsoever.
VII. An Order of the Honourable Tribunal nullifying the Certificate of Return issued to the 2nd Respondent by the 1st Respondent.
VIII. A declaration that Paragraph 44(n) of the 1st Respondent?s Approved Guidelines and Regulations for the Conduct of the Osun State Governorship Election 2018 is void because it (a) is in conflict with the Electoral Act, 2010, as amended, and the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (b) has the effect of expanding or amending the Electoral Act, 2010, as amended, and the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (c) confers additional powers on the 1st Respondent which were neither conferred nor envisaged in the
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Electoral Act, 2010, as amended, and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
IX. An Order striking down and nullifying Paragraph 44(n) of the 1st Respondent?s Approved Guidelines and Regulations for the Conduct of the Osun State Governorship Election 2018 because it (a) is in conflict with the cumulative provisions of Sections 69 and 70 of the Electoral Act, 2010, as amended and Section 179 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (b) has the effect of expanding or amending the cumulative provisions of Sections 69 and 70 of the Electoral Act, 2010, as amended, and the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (c) confers additional powers on the 1st Respondent which were neither conferred nor envisaged by the cumulative provisions of Sections 69 and 70 of the Electoral Act, 2010, as amended, and Section 179 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
X. A declaration that the Respondents manipulated, altered, amended the card reader accreditation data/accreditation on Forms EC8A at Oshogbo, Olorunda, Ola Oluwa,
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Boripe, Ilesha East, Atakumosa East, Ife Central, Ife North, Ife South, Iwo, Egbedore, Ayedire, Ayedaade and Ejigbo Local Government Areas of Osun State.
XI. A declaration that by virtue of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended), the 1st Respondent?s press release and pronouncement (through the Returning Officer) on the 23rd September, 2018 that the election conducted for the office of Governor of Osun State on the 22nd September, 2018 was inconclusive was null, void, ultra vires, unlawful and of no effect whatsoever, howsoever.
XII. A declaration that the 1st Respondent?s decision to order for and conduct a rerun election for the office of the Governor of Osun State conducted in the following seven Polling Units ? Polling Unit 012, Adereti Ward 7 and Polling Unit 010 in Osi Ward 8 of Ife South Local Government; Polling Unit 2 in Oyere II Alapata Village Ward 5 in Osogbo Local Government; Polling Units 1 and 4 in Ward 8, Polling Unit 3 in Ward 9 in Orolu Local Government on the 27th September, 2018 was null, void, unlawful, ultra vires and of no effect
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whatsoever, howsoever.
XIII. An Order nullifying the result of the rerun election into the office of the governor of Osun State conducted on the rerun election of 27th September, 2018 for being null, void, unlawful, ultra vires and of no effect whatsoever, howsoever.
XIV. An Order nullifying or cancelling all votes in all Polling Units where the Petitioners have established over-voting and non-accreditation during the Osun State Governorship Election of 22nd September, 2018.
XV. A declaration that neither the 2nd Respondent nor the 3rd Respondent scored the majority of lawful votes cast at the election to the office of the Governor of Osun State held on 22nd September, 2018 upon cancellation by this Tribunal of the unlawful votes allotted to the 2nd and 3rd Respondents in all the Polling Units where there were over voting and non-accreditation.
XVI. A declaration that Your Petitioners scored the majority of lawful votes cast at the election to the seat of the governor of Osun State held on 22nd September, 2018 and the 1st Petitioner Senator Ademola Nurudeen Adeleke is therefore entitled to be returned as the duly elected Governor of Osun State.
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XVII. An Order returning your Petitioners as the winner of the election to the office of Governor of Osun State held on 22nd September, 2018 and the 1st Petitioner Senator Ademola Nurudeen Adeleke as the duly elected Governor of Osun State.
IN THE ALTERNATIVE
XVIII. An Order declaring your 1st Petitioner as the winner of the election to the office of Governor of Osun State held on the 22nd September, 2018 and the Rerun Election of 27th September, 2018 and that the 1st Petitioner Senator Ademola Nurudeen Adeleke is the duly elected Governor of Osun State based on the scores of the valid votes of the Parties after deduction of the valid votes affected by total votes exceeding accreditation and votes affected by non-recording of accreditation as follows:
APC PDP
Scores of Parties as declared
on Form EC8A 255,505 255,023
Less: Votes Affected by Total
votes exceeding accreditation 8,694 5,119
Less: Votes affected by non-recording
of accreditation 5,476 3,270
SCORES OF PARTIES AFTER
DEDUCTION – 241,335 246,634
THE DIFFERENCE SHOWING THE MARGIN OF WINNING IS 5,299 IN
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FAVOUR OF PDP?
XIX. An Order directing the 1st Respondent to issue your 1st Petitioner Senator Ademola Nurudeen Adeleke with the Certificate of Return forthwith.
XX. Cost of the Petition.?
The Petition was accompanied by a List of documents and List of witness? statements on oath. The Appellant filed its Reply to the Petition along with its accompaniments, (as did the other Respondents to the Petition); and the Petitioners filed distinct Replies to each of the Appellant and the other Respondents? Replies.
At the trial, the parties adduced evidence through their various witnesses as follows: the Petitioners called 80 witnesses, the 3rd Respondent called 11 and the 4th Respondent called 2. They also tendered documents through these witnesses, as well as from the Bar by consent of all parties. The Appellant called no witness but elicited evidence from the witnesses called by the other parties and tendered documents. Thereafter, written addresses were filed, exchanged and adopted.
?At the close of trial, the Tribunal found in favour of the 1st and 2nd Respondents, dismissed the objections raised to the competence
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of the Appeal by the 3rd and 4th Respondents, holding that the reliefs sought by the Petitioners complied with the law, except for reliefs 8 and 9 which the Tribunal cannot grant. It further held that the Petition was not statute barred and that it was not caught by the doctrine of waiver.
Dissatisfied with the decision, the Appellant filed this Appeal on 28th March, 2019 wherein he complained on 22 Grounds (alongside other Appeals filed by the 3rd and 4th Respondents (pages 3969 to 3994 Vol. V of the Record of Appeal). The reliefs sought therein prayed the Court to allow the Appeal, set aside the majority decision of the Tribunal, enter an Order of dismissal of the Petition of the 1st and 2nd Respondents, uphold the election and declaration of the 3rd and 4th Respondents as made by the Appellant.
?The following processes were filed in the Appeal:
1. The Appellant?s Brief of Argument filed on 09-04-2019;
2. The 1st and 2nd Respondents? Brief of argument dated and filed 12th April, 2019; and
3. The Appellant?s Reply to the 1st and 2nd Respondents? Brief of argument filed on 18th April, 2019.
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At the hearing of the Appeal on 24th April, 2019, Yusuf Ali, SAN adopted the Appellant?s Brief of argument. In a brief adumbration, he referred the Court to pages 3874-3875 for the issues identified for determination by the Tribunal. At page 3877, it found that there was no over-voting. It was submitted that the 1st and 2nd Respondents, having not proved their entitlement to the declaratory reliefs sought, there was no necessity for the Appellant to adduce evidence to discredit what has not been proved. He relied on Busari & Anor. V Adepoju (2015) LPELR-41704(CA). He therefore prayed the Court to allow the Appeal.
For the 1st and 2nd Respondents, Dr. Onyechi Ikpeazu, SAN adopted their Brief of argument in urging the Court to dismiss the Appeal. Reference was made to the findings of the Tribunal at pages 3892-3893 where it took account of its earlier finding on the issue of over-voting before it went on to discuss the issue of non-compliance. He therefore submits that there was no contradiction. Reference was again made to pages 3833 where the Tribunal found that the Appellant herein (as 1st Respondent) did not call a single witness to dispel the evidence of
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the 1st and 2nd Petitioners (now Respondents). Further findings were made at pages 3833 and 3869-3870.
On his part, Chief Wole Olanipekun, SAN informed the Court that the 3rd Respondent did not file a Brief of argument because he supported the Appeal.
In like vein, Chief Akin Olujimi, SAN also stated that the 4th Respondent did not file a Brief of argument because it supported the Appeal. In a brief reply on point of law, Mr. Ali submitted that by Section 63(1) of the Electoral Act, the only information required to be inserted into the Forms are the votes scored by each Party. Other information in the Guidelines is superfluous. He also submits that the falsification of Forms was not one of the grounds of the Petition. Therefore, the Tribunal had no basis to make such findings.
In his Brief of argument, the Appellant distilled 5 issues from its 22 Grounds of Appeal as follows:
1. ?Whether the Trial Tribunal was correct in granting declaratory reliefs in favour of the 1st and 2nd Respondents when they failed palpably to proffer cogent, compelling, believable and admissible evidence to establish their entitlement to it, and whether the
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Appellants have any duty to proffer any contrary evidence when the 1st and 2nd Respondents did not make out a prima facie case. (Grounds 1 and 22)
2. Whether the trial Tribunal was correct in holding and coming to the conclusion that 1st and 2nd Respondents rebutted the presumption of law that enurred (sic) in favour of the Electoral documents tendered at the Trial after same Tribunal had correctly held that the documents were dumped on the Tribunal and there was no credible oral evidence linking the exhibits to any aspects of the case of the 1st and 2nd Respondents. (Grounds 2, 3, 5, 6, 7, 8 and 9)
3. Whether the Trial Tribunal was correct in holding that the alleged failure to fill some columns in FORM EC8As was fatal amounted to acts of non-compliance that adversely affected the result of the election in the 17 Polling Units and thereby deducting the valid votes scored by the parties when:
a) The finding was reached per incuriam;
b) There was no credible, cogent, admissible evidence to support the finding;
c) The Tribunal misconstrued the provisions of the Manual for Electoral Officers and Guidelines (Grounds 4, 10, 11, 12, 20 and 21).
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4. Whether the trial Tribunal was correct in declaring the Re-run Election of the 27th September, 2018 illegal on the ground that it was the State Returning Officer that cancelled the results in 7 Polling Units, that the Appellant has no power to order a re-run, and that the burden of proving that the cancellation and re-run were lawful was on the appellant, when this was clearly not so having regard to the pleadings and the evidence. (Grounds 13, 14, 15, 116 and 17)
5. Whether the Trial Tribunal was right in holding that the 1st and 2nd Respondents were not caught by the principle of estoppel, having taken part in the re-run election of 27th September, 2018. (Ground 18)?.
The 1st and 2nd Respondents in their Brief of argument equally framed 5 issues for determination of the Appeal as follows:
1) Whether the Tribunal was correct in granting the reliefs in favour of the 1st and 2nd Respondents having made out a case against the Appellant as well as the 3rd and 4th Respondents. (Grounds 1 and 22)
2) Whether the lower Tribunal was correct in holding and coming to the conclusion that the 1st and 2nd Respondents rebutted the
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presumption of law inured in favour of the electoral documents tendered at the trial (Grounds 2, 3, 5, 6, 7, 8 and 9)
3) Whether the Tribunal was correct when it declared invalid the result in seventeen (17) Polling Units and held that 1st and 2nd Respondents established acts of non-compliance which affected the election. (Grounds 4, 10, 11, 12, 20, 21)
4) Whether the Tribunal was correct when it held that the re-run election was improper, as it was the Returning Officer and not the Presiding Officers for the Polling Units who cancelled the election on those seven (7) Polling Units. (Grounds 13, 14, 16, 16 and 17)
5) Whether the Tribunal was right when it held that by participating in the re-run election of 27th September, 2018 the 1st and 2nd Respondents did not waive their right to complain. (Ground 18)
Evidently, the issues distilled by both parties are similar in content. The Appeal will therefore be addressed based on the issues crafted by the Appellant. However, issues 1, 2 and 3 will be addressed together, and issues 4 and 5 also together.
Issues one, two and three –
1) Whether the Tribunal was correct in granting the
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reliefs in favour of the 1st and 2nd Respondents having made out a case against the Appellant as well as the 3rd and 4th Respondents.
2) Whether the lower Tribunal was correct in holding and coming to the conclusion that the 1st and 2nd Respondents rebutted the presumption of law inured in favour of the electoral documents tendered at the trial.
3) Whether the Tribunal was correct when it declared invalid the result in seventeen (17) Polling Units and held that 1st and 2nd Respondents established acts of non-compliance which affected the election.
In arguing the Appeal under these issues, learned Senior Counsel for the Appellant, Yusuf Ali, SAN, submits that by Paragraphs 102 (i) ?(xvii) at pages 74-78 of the Record of Appeal, the reliefs sought by the 1st and 2nd Respondents as Petitioners were mainly declaratory. Also, the reliefs granted by the Tribunal (at pages 3925 to 3927 of the Record) were declaratory. He submits that a litigant who seeks declaratory reliefs from a Court is duty bound to establish his entitlement to same on the basis of his claims and this obligation would not be discharged by an admission, failure to call
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evidence by the opposing party or any other perceived weakness in the other party?s case. A Court does not make a declaration without cogent, credible and convincing evidence. Reliance is placed on CPC V INEC (2011) 18 NWLR (Pt. 1279) 493, 538; & PDP V INEC (2012) NWLR (Pt. 1300) 538, 561, E-H.
?In the instant case, Senior Counsel submits that the 1st and 2nd Respondents failed to adduce credible evidence to support the allegations of non-compliance. Out of the three species of non-compliance identified by the Tribunal, it found that the allegation of deliberate voiding of valid votes by additional thumb-printing of ballot papers was abandoned; that over-voting was not proved as required by law; and that there was evidence of due accreditation. On the allegation of non-compliance with the Electoral Act and Guidelines regulating the conduct of the election (made in paragraphs 45-77 of the Petition) on account of failure to fill in the columns in the result sheets designed to document accreditation and ballot accounting, the Tribunal held that it was proved. Based on this finding, it nullified the election in 17 Polling Units. It is contended that
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this is in spite of its earlier finding that the voters? register was the major material required to prove over-voting and also its finding that over voting was not proved. Counsel submits that in so doing, the Tribunal fell into error.
Counsel submits that the requirement of completing the 8 columns is provided for only in the Manual for Election Officials (Exhibit P615), and not in the substantive law. He argues that since the Manual does not provide a sanction for the cancellation of results for such non-compliance, the Tribunal read into the Manual that which is not contained therein. Reliance is placed on Dabup V Kolo (1993) 9 NWLR (Pt. 317) 254, 284; Adisa V Oyinwola (2000) 10 NWLR (Pt. 674) 116, 202; & Adefemi V Abegunde (2004) 15 NWLR (Pt. 895) 126.
Counsel further submits that a party who alleges non-compliance with the provisions of the Electoral Laws has a duty to prove it; but also to show the substantial adverse effect of the non-compliance on the outcome of the election – Buhari V INEC (2008) 19 NWLR (Pt. 1120) 246, 433, D-E; Yusuf V Obasanjo (2005) 18 NWLR (Pt. 956) 96, 181; Ogu V Ekweremadu (2006) 1 NWLR (Pt. 961) 255,
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276-277; Eze v. Okoloagu (2010) 3 NWLR (Pt. 1180) 183, 232.
Counsel submits that from the evidence, especially that of the witnesses of the 1st and 2nd Respondents under cross-examination, the non-filling of the columns did not affect the conduct of the election or the results. By Section 139 of the Electoral Act, 2010 (as amended) the Respondents had a legal duty to prove the substantial effect of the non-compliance -DPP V INEC (2009) 4 NWLR (Pt. 1130) 92, 114; Yusuf V Obasanjo (2005) 18 NWLR (Pt. 956) 96, 181. Counsel submits that the witnesses of the 1st and 2nd Respondents who claimed to have observed that the Electoral Forms accreditation and accounting columns were not filled, failed to adduce evidence concerning the impact of the alleged non-compliance on the outcome of the election; while the evidence of the PW74, the Respondents? State Collation Agent and PW77, the paid Statistician, were both hearsay and unhelpful, as only Polling Units Agents in the Units concerned could have given evidence of non-compliance in their Units. Counsel submits that in the absence of such evidence of how the non-compliance tilted the results in one
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party?s favour, the Tribunal was wrong when it nullified the election – Audu V INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456, 519; & Doma V INEC (2012) 13 NWLR (Pt. 1317) 297, 327.
?Counsel further submits that the finding of the Tribunal that the non-filling of the columns in the Forms EC8A was deliberate and tailored towards achieving an unwholesome result, was in the realm of a criminal allegation which was not proved beyond reasonable doubt. He submits that the 1st and 2nd Respondents did not make out a case to justify the Tribunal?s description of the re-run election as illegal and unlawful. Also, that since the reliefs sought were declaratory the onus was on the 1st and 2nd Respondents to prove the illegality of the cancellation, notwithstanding any purported admission by the 1st Respondent or the failure of the 1st Respondent to call any witness. It is also contended that the 1st and 2nd Respondents failed to call Polling Agents or other witnesses or tender the Polling Unit results from any of the 7 Polling Units. He contends that the Appellant and other Respondents had no duty to assist the 1st and 2nd Respondents to prove this
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allegation – PDP V INEC (supra) 561; Iniama V Akpabio (2008) 17 NWLR (Pt. 1116) 225, 303, A-B.
Counsel also submits that the rerun election organised and conducted by the Appellant was legal and justifiable. In addition, that the State Returning Officer had the power to declare an election inconclusive and to make an order for a supplementary election – Faleke V INEC (2016) 9 SCNJ 1, 89; (2016) 18 NWLR (Pt. 1543) 61; CPC V INEC (2011) 18 NWLR (Pt. 1279) 493, 554, F-H.
Reference is also placed on Section 168 of the Evidence Act to submit that there is a presumption of regularity attached to documents emanating from INEC, which is however rebuttable by cogent, compelling, and admissible evidence. In addition, that by Section 137(1) of the Act, the onus of proof lies on the 1st and 2nd Respondents to make out a prima facie case to rebut the presumption of genuineness and authenticity which is capable of shifting the burden of proof on to the Appellant – CPC V INEC (2012) All FWLR (Pt. 617) 605, 639; Okereke V Umahi (20116) LPELR-49935(SC) 65, 67, D-C.
?Counsel furthermore submits that the 1st and 2nd Respondents failed to demonstrate how and why
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the discrepancies between the Certified True Copies of the Forms EC8A and the Pink copies of the Forms had negatively affected the election. That the Tribunal have no power to invalidate the election result if the election was conducted substantially in accordance with the provisions of the Act, and when the non-compliance did not substantially affect the result of the election – Buhari V INEC (2008) LPELR-814(SC).
In the instant case, it is submitted that the evidence led by the 1st and 2nd Respondents disclosed that the votes credited to the parties were not affected by the non-filling of the columns; also, that the carbonised result sheets were available to the Parties and to the Tribunal. It is therefore submitted that the deductions from the votes of the parties is without basis solely on the alleged omission of the failure to fill the columns in the Forms EC8A. The Court is therefore urged to resolve issues 1, 2 and 3 in favour of the Appellant.
?In response learned Senior Counsel for the 1st and 2nd Respondents, Dr. Ikpeazu, submits that election petitions are sui generis. He states that generally in civil matters, facts admitted in pleadings
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means that there is no issue in dispute between parties on such agreed matters, and so evidence on the admitted fact becomes irrelevant and unnecessary. Reference is made to paragraphs 16, 21(b) and 24 of the Petition and the Appellant?s response to the complaint on non-compliance in paragraphs 8, 16 and 21 of its Reply to the Petition. The Appellant never disputed the assertion that elections were held and results were cancelled in the 7 Polling Units by the Returning Officer. The Appellant also failed to call any witness in support of her pleadings. Counsel submits that where a party fails to lead rebuttal evidence of the case of the opposing party, a Court is entitled to resolve matters in controversy against the party unless there are valid reasons to the contrary ? FCDA V Naibi (1990) 5 SCNJ 186, 195-196.
Counsel further submits that in addition to the admission by the Appellant, the Respondents proved their case through the evidence of the PW74, which was direct and unequivocal that elections were held and results in the 7 Polling Units were cancelled by the Returning Officer – PDP V INEC (2012) NWLR (Pt. 1300) 538. Counsel therefore
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submits that the Respondents proved their case and were granted their reliefs, which were not all declaratory. Reference is made to paragraphs 102(xiii), (xiv) and (xvii) and alternative prayer (xix). Counsel also referred to paragraph 102(ii) to submit that the Tribunal did not give the Respondents more than what they asked for.
Counsel further submits that both oral and documentary evidence was led to substantiate the assertions of non-compliance and no rebuttal was offered; and even though the witnesses were cross-examined, the elicited evidence only served to emphasize the disparity between the certified true copies and the pink copies. He submits that where acts of non-compliance are established, the election emanating from the affected Polling Units will be liable to be set aside ? Jolasun V Bamgboye (2010) 18 NWLR (Pt. 1225) 285, 318-319, H-A. It is however submitted that non-compliance is not within the realm of a criminal allegation. ? Chime V Onyia (2009) 2 NWLR (Pt. 1124) 1, 62. Counsel therefore submits that the Respondents discharged the burden of proof on them and the Appellant failed to give any evidence in rebuttal, the burden
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having shifted to them ? Buhari V Obasanjo (2005) All FWLR (Pt. 273) 1.
Counsel also submits that the Tribunal was correct when it held that the re-run election was improper as it was the Returning Officer, and not the Presiding Officer (who has the power to cancel the election at his Polling Unit), that cancelled the election at the 7 Polling Units ? Faleke V INEC (supra).
In respect of the issue of reliefs, Counsel contends that that Section 140(2) of the Electoral Act, 2010 (as amended) was struck down in Labour Party V INEC & Ors Suit No. FHC/ABJ/CS/309/2011for being inconsistent with Sections 134 and 179 of the 1999 Constitution (as amended) which imbues the Court with power to declare the person with the majority votes as winner of an election process.
?On the issue of whether the Respondents rebutted the presumption inured in favour of the electoral documents tendered, Counsel refers to the evidence of the witnesses from the 17 Polling Units, who testified in respect of the non-recording of accreditation and non-filling of the columns in the pink copies of the Forms EC8A in their respective Polling Units, which they
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said were doctored. It is submitted that the Pink copy of Form EC8A is an original by Section 86(3) of the Evidence Act, 2011. Therefore, the presumption of regularity also inures to the Pink copies and not only to the Certified True Copies. The Respondents having rebutted the presumption of regularity of the results, the burden shifted to the Appellant to lead evidence to justify the mutilations on the CTCs, which it failed to do. Counsel therefore submits that once irregularities have been proved and the scores declared unlawful and toxic, once they are deducted from the over-all scores of the parties and it affects the total scores of the alleged winner, it is substantial non-compliance – Ogboru V Okowa (2016) 11 NWLR (Pt. 1522) 84, 139-140, C-A.
?
In respect of the finding of the Tribunal that the elections in 17 Polling Units were invalid, Counsel submits that the Respondents established the acts of non-compliance. The failure to fill the result sheets properly before issuing them to the Polling Agents as mandated by Section 63 of the Electoral Act amounted to substantial non-compliance, as the proper filling of the result sheet is germane to the
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determination of whether the Appellant validly and properly discharged its duty to conduct a free and fair election. The result sheets are meant to reflect the number of accredited voters in the Polling Unit. In the 17-counterpart original Polling Unit results (Pink copies) issued by the Appellant to the Respondents? agents, the columns for accreditation were not filled by the Presiding Officers. It is submitted that accreditation is very important in the election process, as it is the sign post or hangar upon which the Tribunal will determine whether there was any rigging or irregularity in the election ? Ajadi V Ajibola (2004) 16 NWLR (Pt. 898) 91, 182-183.
Reference is made to CPC V INEC (supra) to submit that the Tribunal complied with the preconditions laid down therein as it took into consideration the state of pleadings, the evidence of the 1st and 2nd Respondents and particularly the ?attitude of the functionaries charged with the conduct of the election?. Counsel submits that by simple arithmetic, if the invalid votes from the 17 Polling Units are deducted from the scores of the parties, the result of the election would be
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substantially affected. The Court is therefore urged to hold that the Tribunal was right when it held that the substantial non-compliance substantially affected the results of the election, and therefore to resolve these issues in favour of the Respondents.
Findings –
The issues herein centre on the cancellation of elections in 17 Polling Units spread across 4 Local Government Areas of Osun State due to the absence of entries in the 8 columns on the result sheets in the various Forms EC8A emanating from these Polling Units; which columns are meant to reflect accreditation figures and ballot accounting. The Tribunal held that this breach constituted substantial non-compliance with the Guidelines and Manual for INEC Officials, that it was substantial and that it substantially affected the results of the election. Therefore, under this issue for determination, the Court is called upon to determine the propriety or otherwise of the cancellation of elections in the 17 Polling Units for reason of non-compliance, and its effect.
?I am of the respectful view that these issues turn on a very narrow stricture. Upfront, from the evidence and the pleadings
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before the Tribunal, it is quite apparent that non-compliance with the Guidelines and Manual for the Election in this regard was established by the Respondents, in that by the presentation in evidence of the Certified True Copies (otherwise referred to as ?CTCs?) of the Forms EC8A and their pink counterparts, it was evident that there were entries in the 8 columns of the CTCs of the Forms EC8As of these Polling Units which were not contained in the counterpart copies given to the Polling Agents of the Respondents, otherwise known as the ?pink copies?. Therefore, the Tribunal drew the conclusion that the columns were filled after the pink copies had been given to the Party Agents. I think the Tribunal came to a right conclusion on this based on the cold hard evidence in the documents before it. To quibble about this would only be pretentious. The learned Judges of the Tribunal in the majority Judgment and the dissenting/minority Judgment have set out the facts which led to this inexorable conclusion.
?However, the real question that has arisen for determination is whether or not this obvious non-compliance was substantial and whether
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or not it substantially affected the elections in each of the 17 Polling Units sufficient to nullify them. This is the purport and essence of Section 139 of the Electoral Act, 2010 (as amended). For ease of reference, I will reproduce it as follows:
139. (1) 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.
(2) An election shall not be liable to be questioned by reason of a defect in the title, or want of title of the person conducting the election or acting in the office provided such a person has the right or authority of the Commission to conduct the election.?
It is in this vein that I invite my lords to join me in examining the evidence emanating from the Respondents at the Tribunal, in proof of the averments in their pleadings and assertion that the non-compliance was substantial and also did substantially affect the elections.
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In the Petition, the Petitioners pleaded in paragraphs 43-77 that, at the election of 22nd September, 2018, there were acts of substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the extant Guidelines and Manuals for the Election which substantially affected the results of the election. They contended that the acts of substantial non-compliance included the non-recording of items in the result sheets deliberately to shield the wrongful entries made as to the votes of the Parties and the result of accreditation.
?In order to establish these allegations, the Petitioners adduced evidence through 17 witnesses comprising of the Petitioners? Polling Agents at the 17 Polling Units, who tendered the counterpart copies, also referred to as pink copies, of the Forms EC8A which they were given at their various Polling Units. The Certified True Copies or white copies of these Forms were also tendered from the Bar. In addition, PW74, the State Returning Agent of the Respondents, gave general testimony on these allegations. However, his evidence on this was essentially hearsay since he admitted that he was not present at any of the Polling
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Units during the elections in question.
The main thrust of the evidence of the Polling Agents as contained in their written statements on oath, which they adopted at the Tribunal as their evidence before it, was as follows ?
?That the 1st Respondent (or Electoral officer) failed to record the columns of the result sheets designed to document the accreditation and ballot accounting at…?
After which they inserted the relevant details of the Polling Units which they supplied. However, under cross-examination, all the witnesses consistently and candidly stated that there was accreditation in their respective Polling Units before the commencement of voting, and for those among them who voted, they were duly accredited before they voted. Also, all the witnesses were unanimous in stating that they had no problem with the votes scored by the candidates. A random sampling of their responses upon being cross- examined on their evidence in their Statements on oath is reproduced hereunder for ease of reference:
PW35 at page 3537 volume V of the Record stated:
?INEC counted the ballot in my presence and the presence of other parties?;
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PW37 at page 3540 volume V of the Record stated:
?I voted on the date of the election after I was accredited. I witness the counting of ballots after the voting… I know my party has 27 votes at the time of counting the votes… My complaint is not about votes scored?;
PW39 at page 3544 volume V of the Record stated:
?ADP in column 8 scored 132 votes. APC scored 32 votes. PDP scored 19 votes. But I am not talking about the scores… Yes, ADP won in my polling unit, but I have no complaint about the votes?;
PW46 at page 3556 volume V of the Record stated:
?the scores announced are the scores recorded in the result sheets?;
PW48 at page 3560 volume V of the Record stated:
?I am not quarrelling with the scores?;
PW54 at page 3569 volume … of the Record stated:
?I have no problem with the scores of the candidates?;
PW56 at page 3574 volume V of the Record stated:
?Yes, I voted on the date of the election and was duly accredited… I have no complaint on the scores recorded for the parties?;
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PW57 at page … volume V of the Record stated:
?I have no problem complaint about the votes, but there is no accreditation… I was accredited after we lined up. The register is checked for my name before I was given ballot paper to vote?;
PW58 at page 3577 volume V of the Record stated:
?my complaint is that INEC did not register the accreditation number, I have no complaint on the scores of my party?;
PW59 at page 3579 volume V of the Record stated:
?apart from non-recording of the figures of accredited voters, I do not have any other complaint?;
PW61 at page 3582 volume V of the Record stated:
?Yes, I voted on the date of election after I was accredited… I don?t have any problem with the scores of the parties. My problem is with non-entry of figures of accreditation?;
PW62 at page 3582 volume V of the Record stated:
I don?t have any problem with the scores of the parties. My problem is non-entry of figures for accreditation?.
With these pieces evidence from the 1st and 2nd Respondents? own witnesses, to wit: the Polling Agents from the 17 Polling
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Units, it is evident that there was substantial compliance with Section 63 of the Electoral Act (supra), contrary to the submissions of the Respondents. For ease of reference, Section 63 of the Act (supra) states ?
(1) ?The Presiding Officer shall, after counting the votes at the Polling Unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case may be.
(2) The Form shall be signed by the candidates or their polling agents where available at the polling unit.
(3) The Presiding Officer shall give to the Polling Agents and the police officer where available a copy each of the completed Forms after it has been duly signed as provided in Subsection (2) of this section.
(4) The Presiding Officer shall count and announce the result at the Polling Unit.?
Thus, from the above pieces of evidence from the 1st and 2nd Respondents? witnesses, they were consistent in saying that all these provisions were duly complied with by the Election Officials in the 17 Polling Units. The only problem the witnesses had was in relation to the fact that the 1st Respondent did not fill out the
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8 columns for accreditation and ballot accounting in the Forms EC8A given to them at the close of voting and announcement of results. The evidence of these witnesses, who were the Polling agents, was therefore in disagreement with the averments of the Petitioners in paragraphs 45 to 77 of the Petition, wherein they pleaded that the failure to fill in the columns in the Forms EC8A was deliberate in order to hide wrongful entries as to votes and accreditation. No such evidence was given by them or elicited from them under re-examination.
?More significant is the fact that the witnesses all agreed that they signed the white copies of the results and they were given the pink carbonised copies. In addition, they all agreed that they did not have any problem with the scores recorded on both the CTCs and the pink copies of the Forms EC8A and that the scores in the results sheets were correct. The only problem which they expressed they had, was with the non-filling of the 8 columns in the result sheets. However, they agreed that accreditation took place in the Polling Units, after which voting took place, results were duly sorted, counted, announced and entered
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into the Forms EC8A, which they signed and received copies. Thus, the only grouse the Respondents had with the results of the elections in the 17 Polling Units, as per their pleadings and evidence, was that the data/statistics for accreditation and ballot accounting was not entered into the Forms EC8A, even as their witnesses said that they had no problem with the scores credited to the Parties in the result sheets.
?In the light of the pleadings of the Respondents however, none of the witnesses spoke to or demonstrated how the omission by the agents to record the data/statistics in the 8 columns of the result sheets substantially affected the result of the election; also none of them testified that the omission to record such entries in the result sheets was deliberate in order to shield wrongful entries as to the votes of the parties and the result of accreditation, in order to substantiate their pleadings in this regard in the Petition. Thus, this aspect of the pleadings was not substantiated by evidence. The law is trite that pleadings do not constitute evidence. Therefore, a party is required to adduce positive evidence to prove his pleadings in
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order to crystallize the averments therein into legal evidence capable of consideration by the Court.
?The ratio decidendi of the Tribunal?s findings under this issue is that the omission of the Presiding Officers in the Polling Units to fill in the 8 columns in the Forms EC8A with the information on accreditation and ballot accounting, rendered the results sheets defective and constituted non-compliance with the provisions of Section 63 of the Electoral Act and the Guidelines and Manual for Electoral officials. It was in addition the Tribunal?s finding that the non-compliance was substantial and that it also substantially affected the election. All these conclusions were drawn from the information on data/statistics, or lack of it, on the Forms EC8A. The question however arises as to whether the omission to enter the requisite statistics into the result sheets equates to improper accreditation, as expressly found by the Tribunal. Indeed, the Tribunal had tough words for this omission, as well as the production of CTCs of the result sheets which contained information not reflected in the pink counterpart copies. Excerpts from the findings of
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the Tribunal in nullifying the elections in the 17 Polling Units are reproduced hereunder at pages 3893 to 3901 Vol. V of the Record for clarity of argument:
?The issue now is whether the non-recording of the columns for accreditation and ballot accounting on the result sheets is an act of non-compliance. The design and what information and data is to be contained in the result sheets is a mandate of the INEC Manual and Guidelines, Exhibit P615…
The use of the word ?shall? in paragraph 2.6.4 is mandatory. The above items show that a statement of result which does not contain the information in the appropriate columns is defective. It is our humble view that the above columns carry vital and crucial information which are meant to act as check and control on the electoral activities in a polling unit. They constitute the hangar for testing whether there are irregularities in the conduct of the election. The information on those columns is necessary for any serious effort at proving several malpractices including over-voting and ballot accounting…
It has been established in a long line of cases that for a petitioner to
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succeed in a case of non-compliance he has a duty to prove not only that the non-compliance was substantial but also that it substantially affected the result of the election… Judging from the spread of the areas where this non-recording occurred, we are of the opinion that the non-recording was deliberate and tailored towards achieving an unwholesome result. This is clear because whatever the scores of the political parties may be, any discrepancy when compared to the number of accredited voters and ballot papers issued to the polling units, may later be corrected by the subsequent filling and manipulation of the figures in the columns which will then be consciously filled after the conclusion of the elections to remove the discrepancy. This fact became apparent when the CTCs emerged from the custody of the 1st Respondent, now having figures in those 8 columns which were not in the pink copies…
It is our considered opinion that the non-recording of the columns in the result sheets which we regard as the check-list or control columns is an act of non-compliance with the Electoral Act and the Manual for Election Officials.
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The argument of the respondents that the non-compliance did not affect the result of the parties because the petitioners? witnesses testified that they have no quarrel with the scores credited to the parties is not tenable. This is because a party does not have to quarrel with the scores of an election in order to establish electoral malpractices. For example, in cases of allegation of over-voting, the scores of the parties and whether the parties accept the scores is immaterial. What is important is whether the total valid votes cast at the election exceeded the registered or accredited voters. In the same vein, number of issued ballot papers, number of unused, spoilt and rejected ballot papers are not known and it is untenable to assert that the scores of the parties are valid. The validity of the scores of the parties cannot stand in isolation of a determination of the ballot papers issued and used or rejected in the polling unit for the election…
The effect of our finding on the non-recording of the necessary columns in the identified EC8A Forms means that the votes from the affected 17 Polling Units are invalid. The votes are APC 2,029 and PDP 1,246. They shall
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be deducted from the final scores of the parties.?
This was the crux of the Judgment of the Tribunal on the issue of non-compliance delivered by a majority of its members.
Interestingly however, the Chairman of the Tribunal dissented in material particulars with the Judgment, and in particular, with respect to the issue of the substantiality of the non-compliance and how it substantially affected the result of the election. It would therefore be fair to also examine his reasons for making such contrary findings. His lordship explains his reasoning at pages 3943 to 3951 Vol. V of the Record of Appeal. I again invite my lords to come with me in walking through the thinking in this minority decision, excerpts of which are again reproduced hereunder:
?It should be noted that this particular allegation is strictly made against the 1st Respondent, the Umpire that conducted the Osun State Governorship election… As stated earlier, in the course of cross examination of all the 23 witnesses called by Petitioners under this allegation, all of them testified that there was accreditation in their respective polling units. They also confirmed
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that after the election, votes were sorted out, counted and the scores announced before they were entered into the result sheets. All those 23 witnesses chorused the fact that they have no complaint against the votes scored by the parties in their respective polling units. It is therefore established before me, through the testimonies of the petitioners? witnesses that there was accreditation in the polling units manned by these 23 witnesses who served as polling agents for the Petitioners. It is also established through the same witnesses that votes credited to the Petitioners and to the 2nd and 3rd Respondents were the actual votes scored by them in the affected polling units. Therefore, there is no challenge in respect of the accreditation or votes scored by the petitioners and the 2nd and 3rd respondents in these 23 polling units. It has also not been shown or demonstrated through the Forms EC8A and the voters? registers that there was over voting in those 23 polling units. The only grouse the Petitioners had with the results of the election in those polling units is that the data for accreditation and ballot papers have not been entered in the
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Forms EC8A, and as a result of this omission they want the result of the affected polling units cancelled, even though the witnesses called by them said they have no problem with the votes credited to the parties in the result sheets. However, the question as to how the omission by the agents of the 1st Respondent to record some data in the columns of the result sheets, which is a question of fact, affected substantially the result of the election, is also not stated in the testimonies of all the 23 witnesses. Furthermore, none of these 23 witnesses testified that the omission to record some entries in the result sheets was deliberately made to shield the wrongful entries as to the votes of the parties and the result of accreditation, as pleaded by the petitioners. It is settled law that pleading cannot supplant evidence. Witnesses must testify on facts pleaded in order to crystallize such facts in to legal evidence capable of consideration by a Court or Tribunal…
In this petition it is not in dispute that 90% of the processes involved in the conduct of the election in a polling unit has been fully complied with. Voters were duly accredited before they
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cast their votes. At the conclusion of voting, ballot papers were sorted out and counted. The Presiding Officers announced the votes scored by the parties, entered the figures in the result sheets and signed. The party agents countersigned the result sheets and collected copies. The only non-compliance is that the Presiding Officers did not record the columns for accreditation and ballot accounting data. There is no complaint that the election in those 23 polling units was afflicted by any other irregularity. I am satisfied that there is non-compliance by way of omission to record the columns for accreditation and ballot accounting in 23 polling units out of 3,101 polling units in Osun State. What then is the degree of non-compliance? Considering the fact that all the petitioners? witnesses called in proof of this allegation have confirmed that accreditation took place in the respective polling units and that they have no complaint about the scores of the parties, coupled with the absence of proof of over-voting in the affected polling units, I hold that the omission to record the columns for accreditation and ballot paper accounting on the result
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sheets, though a non-compliance, did not amount to substantial non-compliance.?
?Upon a review of the two decisions, I am inclined to agree more with the latter findings. Since the Tribunal drew a conclusion that the CTCs of the Forms EC8A were, in its own words, ?doctored? after the Polling Agents of the Respondents had been given the pink copies of the Forms; and since the pink copies were counterpart copies of the original white copies; and in view of the evidence of the Respondents? witnesses that they had no issues with accreditation or scores entered into the pink copies; the Tribunal should rightly have accepted the pink copies (as opposed to the CTCs) as genuine and good evidence of the elections conducted in the 17 Polling Units. As counterpart copies, they are as good as the original. See Section 86(1) & (3) of the Evidence Act on the species of primary evidence. The finding (rightly or wrongly) that the doctoring of the CTCs was carried out after the pink copies were given to the Respondents? witnesses, made the pink copies all the more authentic, reliable and a true reflection of the results/scores of the
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candidates in the elections conducted at the 17 Polling Units. To have refused to also grant credence to the results in the pink copies as it did to the CTCs which it held were ?doctored? afterwards, amounted to throwing the baby away with the bath water. This does not accord with justice.
?With the greatest respect, where I think the learned Judges of the Tribunal got it wrong is that they extended the effect of the non-compliance to the over-all scores of the Parties as a whole component/part/constituent from the 17 Polling Units; instead of determining how the non-compliance substantially affected the election in each of the Polling Units. In other words, the Tribunal looked at the overall scores of the Parties from the 17 Polling Units and the difference in the margin of votes, in arriving at the conclusion that the non-compliance was substantial. However, what they ought to have considered was the effect (of the failure to fill in the data for accreditation and ballot accounting in the columns of the Forms EC8A) on the elections in each of the Polling Units, as opposed to its effect on the overall results in the election. It would be
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considered substantial if in any way, it affected the election in that individual unit, for instance such as to change the scores recorded therein for the Parties. It is only when considering whether the non-compliance substantially affected the election that the elections in the 17 Polling Units would then be considered.
?It must be remembered that an election is a process commencing from nomination of candidates in Primary Elections of Political Parties to the final declaration of results at the end of voting and collation. An election is not merely the accreditation and voting process, notwithstanding that they are vital parts of an election. The question therefore is, in this vital component of the election in which it has been shown by no less than the Respondents? own witnesses, that:
(i) accreditation took place,
(ii) the electorate in their respective Polling Units freely voted,
(iii) the votes were sorted, counted and announced at the Polling units,
(iv) they were reduced into writing by the Presiding Officers,
(v) who duly signed same,
(vi) the polling agents of the Parties, inclusive of the
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Respondents? witnesses, also signed without any protest, and
(vii) they were given counterpart copies of the results in fulfilment of the Guidelines;
how then did the omission of the Presiding Officer to record all the data as to accreditation and ballot accounting amount to substantial non-compliance in the election at each of the Polling Units?
?While not intending to downplay the significance of the information required in those 8 columns, it is also important to note that the absence of the information on the Forms EC8A does not necessarily equate to a lack of transparency, neither was it fatal to the election to warrant its nullification. More importantly, the non-compliance in filling in the columns if the Form EC8A does not necessarily lead to the irresistible and only conclusion that the Presiding Officers omitted to insert the said information in the 8 columns for dubious and clandestine purposes, as was concluded by the Tribunal. I must say that this conclusion arrived at was baseless as it was made on the basis of the pleadings and address of Counsel for the 1st and 2nd Respondents, without any effort at substantiating such
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weighty allegations by evidence. I will explain anon.
From the relevant columns in the Forms EC8A, the following information was required to be filled in by the INEC Officials:
1. ?Number of votes on the Register
2. Number of Accredited
3. Number of Ballot Papers issued to the Polling Unit
4. Number of Unused Ballot Papers
5. Number of Spoiled Ballot Papers
6. Number of Rejected Ballots
7. Number of Total Valid (sum of valid votes cast for all parties)
8. Total Number of Used Ballot Papers (sum of 5+6+7 above)?
In paragraphs 2.6.4 Steps 1 to 7 of the Manual for Election Officials, Exhibit 615, it is provided thus:
?The PO shall:
Step 1: record the number of registered voters as contained in the register of voters.
Step 2: refer to Form EC.40A to record the total number of ballot papers issued to the Polling Unit and the number of unused ballot papers.
Step 3: refer to Form EC40.B to record the number of rejected ballots and Form EC40.C to record spoilt ballot papers.
Step 4: record the valid votes scored by each of the political parties in figures and in words in the
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spaces provided.
Step 5: add up and record the total valid votes scored by all the parties at the bottom of the Form as well as in the box for item 7 at the Form.
Step 6: add up the number of spoilt ballot papers, plus the number of rejected ballots, plus the total valid votes to get the number of used ballot papers and record same in the box provided.
Step 7: write his/her name on the relevant EC.8A Form, with stamp and date. He shall then sign the Form and request the Polling Agents to countersign it.?
From the above, it is apparent that the primary sources of the information to be entered into those 8 columns in the Forms EC8A are the Forms EC40A, EC40B and EC40C. These documents at once also disclose the total number of ballot papers issued to the Polling Units, the number of unused ballot papers, the number of rejected ballots and the number of spoilt ballot papers. The witnesses of the Petitioners, having been consistent in testifying that accreditation was duly carried out, voting took place, votes were sorted, counted, announced and entered into the Forms EC8A, which were signed by the Presiding Officer and countersigned by
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the Polling Agents, clearly authenticated the validity of the results entered into the Forms EC8A.
While the Petitioners? complaint is essentially that the data or information, (which is also contained in other Forms, id est Forms EC40A, EC40B and EC40C), was subsequently not reflected in the 8 columns of the Forms EC8A, and this is certainly borne out by the pink copies of the Forms EC8A admitted in evidence; what really is the substantiality of the Respondents? complaint when the same data is captured and available to be crosschecked by any interested party in the other Forms of INEC?
?Indeed, in order for the Respondents to have proved that the defect in the Forms EC8A were substantial, it was vital and incumbent upon them to have produced and tendered the Forms EC40A, EC40B and EC40C, in order to establish that the omission to fill in the 8 columns in the result sheets did actually affect the election. This would also have had the effect of establishing whether the subsequent and latter-day attempt by the INEC officials to comply with the Guidelines and Manual by entering the information on the CTCs of the Forms EC8A, was
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?deliberate and tailored towards achieving an unwholesome result?, as held by the Tribunal.
Indeed in Paragraphs101 (v) and 101(viii) of the Petition (at page 72 Vol. I of the Record), the Respondents pleaded that they will rely on Form EC25B(1) ? the Electoral material Receipt (Reverse Logistics from the Presiding Officers), and Form EC40A ? the ballot paper account verification. However, they failed to subsequently produce these documents at the Tribunal, therefore leading to the invocation of the legal presumption that if they had produced these pleaded documents, they would have been unfavourable to their case ? Section 167(d) of the Evidence Act, 2011 (as amended). In any case, the assertion on the substantiality of the non-compliance alleged was theirs, and so the burden was squarely on their shoulders to prove same. In the light of the declarations sought, they were obliged to prove their entitlement to the declarations, notwithstanding the real or perceived weakness of the case of the Appellant.
In my assessment, while the INEC Officials must be deprecated for their sloppiness, lack of attention to duty and
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failure to comply with Steps 1 to 3 of the Manual for Election Officials, such was not fatal to the elections conducted in the 17 Polling Units in view of the in-built safeguards that provided back-ups for the same information or data in the Forms EC40A, EC40B and EC40C. These 3 Steps spelt out in the Manual for Election Officials which were not complied with by the Election Officials clearly stated that the Officials were to refer to these three Forms to extract the data/statistics which they would then insert into the result sheets/Forms EC8A of the Polling Units.
From its findings and in view of the evidence adduced before it on this issue, it is plain that the Tribunal did not void the elections in the 17 Polling Units for non-compliance with the substantive law, to wit: the provisions of the Electoral Act, and in particular, with Section 49 thereof which relates to accreditation, issuance of ballot papers and voting. Instead, the Tribunal nullified the elections on the basis of non-compliance with Steps 1 to 3 of the Manual for election Officials. This is however contrary to the decision of the Supreme Court in the recent case of Nyesom V Peterside
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(2016) LPELR-4003(SC) per I.T. Muhammad, JSC (now Acting CJN) where the apex Court, despite having found that the INEC Manual for Election Officials was made pursuant to the powers granted under Section 153 of the Electoral Act, 2010 (as amended), still held, as follows:
?I agree with my learned brother, Kekere-Ekun, JSC, that the failure to follow the Manual and Guidelines, which were made in exercise of the powers conferred by the Electoral Act cannot in itself, render the election void.?
I have gone to these lengths in my consideration of the substantiality of the non-compliance complained of because election matters are not run of the mill cases, the outcome of which generally only affects the parties to the suit. Election matters are sui generis; they are a peculiar or a typical specie of civil actions which are in a class of their own. The outcome of an election is of immense interest and significance, not only to the electorate who vote, but also to the general populace in the Constituency where the election is held. That is why it is important, to as much as possible, allow the votes of the electorate who troop out resolutely and
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excitedly, with a sense of duty and purpose, to vote the leaders of their choice, to count without an undue insistence on a narrow, constricted, rigid and inflexible compliance with manuals and guidelines which are made to facilitate and assist the Umpire in conducting a free and fair election. I also agree with the dissenting decision of the Tribunal that the Presiding Officers are only human and so, are also fallible or imperfect. Therefore, where, in the conduct of elections in their Polling Units, they make negligible and trifling mistakes, such as in this case, it should not be capitalised upon to deny the electorate or the voting public of their right to freely choose their leaders. This much was captured in the dissenting Judgment where the learned Judge stated at page 3947 Vol. V of the Record thus:
?An election denotes a process of choosing by popular votes a candidate for political office in a democratic system of government. See Marwa V Nyako (2012) LPELR-7837(SC). The processes involved in an election in a polling unit starts with accreditation, casting of votes, sorting and counting of ballot papers, announcement of scores for political
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parties, recording the scores in the appropriate form together with the figures of accredited voters and account of ballot papers.
It is clear from the above provision that it is not every non-compliance or deviation with the provisions of the Act that will lead to invalidation of an election. The framers of the Electoral Act are fully conscious of human fallibility and that is why the statute did not expect and calls for absolute compliance with its provisions. The degree of compliance required to validate an election is substantial compliance. For any non-compliance to have the effect of invalidating an election, such non-compliance must in itself be substantial and must have substantially affected the result of the election.?
I cannot but agree with these findings, which I also prefer to the Tribunal?s findings in its majority decision. I am of the view that it is not helpful in the quest of allowing the electorate to choose their leaders to be unduly legalistic, pedantic and finicky when it comes to matters that are really insubstantial and have very little or no effect on the integrity of election itself. The findings of the
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Tribunal that the failure to enter the data or statistics in the Forms was deliberate and tailored towards achieving an unwholesome result, in my humble view were extreme, speculative and not borne out by any evidence adduced before it. This is because the same information on accreditation and ballot accounting was always available to the 1st and 2nd Respondents in other Electoral Forms, to wit, Forms EC40A, EC40B and EC40C, and so the said Respondents were not prejudiced by the omission to also enter the statistics from these Forms into the Forms EC8A. Therefore, the Tribunal?s categorization and labelling of the omissions by the INEC Officials, in my view, was uncalled for. This is more so that the Respondents? own witnesses under cross-examination testified that accreditation was duly carried out and that they had no problem with the scores of the Political Parties reflected in the results sheets. I therefore agree with the submission of the learned Senior Counsel for the Appellant that the absence of ballot paper accounting records and record of accreditation on the Forms EC8A in the 17 Polling Units was not substantial and did not
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substantially affect the results of the elections therein. I do so hold.
Finally, Section 140(1) (2) and (3) of the Electoral Act, 2010 (as amended) provides as follows:
?140. (1) Subject to Subsection (2) of this section, if the Tribunal or the Court, as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election.
(2) Where an Election Tribunal or Court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, or that the election was marred by substantial irregularities or non-compliance with the provisions of this Act, the Election Tribunal or Court shall not declare the person with the second highest votes or any other person as elected, but shall order fresh a election.
(3) If the Tribunal or the Court determines that a candidate who returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected
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the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.? (Emphasis supplied)
In the instant case the Respondents, in satisfaction of Section 138(1) of the Electoral Act, 2010 (as amended), stated the grounds for presenting the Petition in Paragraph 15 of the Petition. The complaint on non-compliance was stated in Paragraph 15(ii) thereof and it states as follows:
?15. Your Petitioners aver that the grounds for this Petition are as follows:
i. That the 2nd Respondent was not duly elected by the majority of the lawful votes case at the Governorship election in Osun State held on September 22, 2018 and the Rerun election held on September 27, 2018.
ii. That the declaration and return of the 2nd Respondent as the elected Governor of Osun State is invalid by reason of substantial non-compliance with the provisions of the Electoral Act 2010 (as amended), during the Governorship Rerun election in Osun State of September, 27, 2018.
iii. That the declaration and
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return of the 2nd Respondent as Governor elect of Osun State is invalid by reason of corrupt practice, during the Governorship Rerun election in Osun State of September 27, 2018.?
(Emphasis supplied)
From the above, it is explicitly stated in Ground two that the Respondents? challenge of the declaration and return of the Appellant was on the ground of non-compliance with the provisions of the Electoral Act, 2010 (as amended), during the Governorship Rerun election in Osun State of September 27, 2018. This needs no external aid to interpret or construe it.
Since that is so, where the Tribunal found that the 1st and 2nd Respondents had proved that the election was afflicted by the virus of non-compliance with the provisions of the Electoral Act, the only appropriate Order it could have made was to Order a fresh election in line with Section 140(ii) of the Act (supra), and not to re-compute the votes scored by the Parties and proceed to declare the person with the second highest votes, or any other person, as the winner of the election.
?Therefore, it is in the light of all my findings on these issues that I resolve issues 1, 2 and
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3 in favour of the Appellant and against the 1st and 2nd Respondents.
Issues four and five
4. Whether the Tribunal was correct in declaring the Re-run Election of 27th September, 2018 illegal on the ground that it was the State Returning Officer that cancelled the results in the 7 Polling Units, that the appellant has no power to order a re-run, and that the burden of proving that the cancellation and the rerun were lawful was on the Appellant when this was clearly not so having regard to the pleadings and evidence led.
5. Whether the Trial Tribunal was right in holding that the 1st and 2nd Respondents were not caught by the principles of estoppel having taken part in the re-run election of 27th September, 2018.
?Under these issues, learned Senior Counsel for the Appellant submits that the provisions of the INEC Guidelines and Regulations and Manual rooted in Section 153 of the Electoral Act, 2010 (as amended) gave both the Presiding Officer and the State Returning Officer the powers and obligations to act appropriately at different stages of the electoral process, in so far as conditions listed in each of the provisions are identified at
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the different stages of the electoral process. Counsel submits that both the Presiding Officer and the State Returning Officer, for and on behalf of the Appellant are differently empowered by statute to act in their respective capacities to either confirm the completion of an electoral process in their domain or pronounce same inconclusive/cancelled depending on the peculiar circumstances of each case. It is at the stage where each of the listed conditions become discernible and apparent that determines the applicable provisions of the Guidelines and Regulations, Manual or the Electoral Act that becomes applicable, and correspondingly the official that has the obligation to act at that stage.
Counsel submits that in this instance, the applicable provisions of the INEC Guidelines and Manual are Paragraphs 3.11 Steps 1-16, pages 81-82 of the Manual for Election Officials, 2018, Exhibit 615 in conjunction with Paragraphs 44, pages 21-23 of the INEC Approved Guidelines and Regulations, Exhibit R112.
It is submitted that a joint reading of these provisions, especially steps 5-14 of the INEC Manual and Paragraphs 44(n) of INEC Guidelines and Regulations
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shows that the State Returning Officer is empowered to declare inconclusive an election –
where the margin of win between the two leading candidates is not in excess of the total number of registered voters of the polling unit(s) where elections were cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit(s) and the result incorporated into a new form EC.8D and subsequently recorded into Forms EC.8E for declaration and return.?
Counsel therefore submits that upon a proper construction of these provisions, the Tribunal would have declined to hold that the State Returning Officer lacked the power to act as it did.
?Counsel also submits that since the 1st and 2nd Respondents did not tender the results of the 7 Polling Units where they claimed that elections were cancelled, the Form EC40G or other electoral documents to show that elections actually held in the 7 Polling Units, the finding on who possesses the power to cancel elections, is academic. It is also submitted that the Tribunal was in error when it anchored its conclusions on the supposed admissions of the
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Appellant in their pleadings which it held, translated into the 1st and 2nd Respondents discharging the onus of proof on them and consequently shifting the burden on the Appellant to prove otherwise. He submits that in an Election Petition, the burden of proof is on the Petitioner, and this is even more so since the reliefs claimed are declaratory and so cannot be granted even on an admission.
Counsel submits that it was therefore not enough for the PW74 to allege that the State Returning Officer wrongly declared the result of the election inconclusive. It had to be proved that he did not possess such power. By the evidence of PW74, it was portrayed that the Respondents had in their possession a Certified True Copy of a Press Statement from the Appellant issued on 23rd September, 2018 which shows that elections were conducted and arbitrarily cancelled in the 7 Polling Units. However, the Respondents failed to lead evidence in proof of Paragraph 101 of their pleadings where the alleged Press Release was pleaded, therefore the presumption in Section 167(d) of the Evidence Act should be invoked against them.
?In like vein, the Presiding Officers or
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corresponding Party Agents at the Polling Units were not subpoenaed to give evidence in proof of the allegation that elections were validly conducted but unlawfully cancelled. Counsel therefore submits that the onus of proof was never discharged and therefore it never shifted; as the 1st and 2nd Respondents must succeed on the strength of their case and not on the admissions or perceived weakness of the defence.
Counsel further submits that by a combined reading of Paragraphs 3.11 and 44(n) of the Manual and Guidelines, where the Returning Officer discovers during the collation of the Governorship result that the margin of win between the two leading candidates is not in excess of the total number of registered voters in the Polling Units where elections were cancelled or not held, the Returning Officer shall decline to make a return until another poll has taken place in the affected Polling Units ? Faleke V INEC (2016) 18 NWLR (Pt. NWLR (Pt. 1543) 61. Thus, he contends that the Appellant reserves the right to rely on and make use of its Manual and Guidelines to order a re-run, as was done in this instance. This duty is statutory and does not
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accommodate the use of discretion.
Counsel therefore submits that the facts in this case are not in tandem with the cases in Ikpeazu V Otti (supra) and Doma V INEC (supra) with the advent of Paragraphs 3.11 and 44(n) of the Manual and Guidelines which have donated that duty to the Returning Officer. This duty having been statutorily imposed by law, the officer involved has no discretion on its performance and a Court cannot restrain an officer from performing a statutory function whenever duty calls ? Bamidele V Commissioner, Local Govt. (1994) 2 NWLR (Pt. 328) 568, 585.
?In respect of the finding of the Tribunal that the 1st and 2nd Respondents were not caught by the principles of estoppel having taken part in the rerun election of 27th September, 2018, reliance is placed on the above submissions under issue 4 in submitting that the Respondents having voluntarily participated in the rerun election and secured votes therein cannot challenge the legality of the exercise, as they are caught by the doctrine of waiver rooted in the doctrine of estoppel by conduct, which is provided in Section 169 of the Evidence Act. It is submitted that election
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Petitions are sui generis and therefore the laws, principles, rules and regulations in it are close-ended and so parties are expected to act within the bounds of the rules. Counsel therefore submits that, as at 27th September, 2018, the 1st and 2nd Respondents had the right to decline participation in an election which they had hitherto disclaimed and described as illegal. Rather than hold on to that position, they led other stakeholders, including the Appellant, into believing that they agreed to the position taken by the Appellant to declare the election inconclusive and order a rerun. This act, it is submitted, constitutes estoppel by conduct ? Iga V Amakiri (1976) LPELR-1439(SC) 15-16, D-A.
?Counsel therefore submits that the 1st and 2nd Respondents, having agreed to surrender to the authority of the Appellant and participated in the rerun election have waived their rights to complain about the legality of the said election. Instead, that they have, by their conduct, activated the provisions of Section 137(1) and 138(2) of the Electoral Act which clothes them with the right to challenge the outcome of the said election (and not the legality of
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the exercise itself), and the acts done by officers in the conduct of the election ? Emerhor V Okowa (2016) 1 NWLR (Pt. 1522); Iga V Amakiri (supra) 3925-3918; & Sylva V INEC (2016) 11 SC 52. The Court is therefore urged to resolve these issues in favour of the Appellant.
In response, learned Senior Counsel for the Respondents submits that the fact that elections were held and cancelled in the 7 Polling Units was not in dispute from the totality of pleadings and evidence before the Tribunal. Reference is made to paragraphs 16, 21(b) and 24 of the Petition vis-a-vis paragraphs 8, 6 and 21 of the Appellant?s Reply to the Petition to submit that in law, an admission is an act of acceptance or concession to a factual situation – Cappa & D?Alberto Ltd V Akintilo (2003) 9 NWLR (Pt. 824) 49, 69. Therefore, the Appellant is bound by his admission and cannot resile from it.
?Reference is also made to the INEC Manual for Election Officials (Exhibit 615) chapter 3, Paragraph 3.2 to submit that it is the duty of the Presiding Officer to cancel the election at the Polling Unit. The duties of a Returning Officer are spelt in the same
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Manual at Paragraph 3.11, Steps 1-16 at pages 81-82 thereof. It is submitted that the Manual, being a subsidiary legislation, is meant to guide the election process and it is mandatory that INEC Officials are bound to uphold the terms and tenor of same ? Faleke V INEC (2016) 18 NWLR (Pt. 1543) 61, 157, B, E-F. It is submitted that the presumption of law in Section 167(d) of the Evidence Act is invoked against the Appellant for failing to tender the Form EC40G series and produce the report of the Presiding Officer where election was not held/cancelled.
It is further submitted that since facts admitted need no further proof, the effect of the admission by the Appellant is that the evidence of the 1st and 2nd Respondents remains unchallenged, and so they have been relieved of the burden of adducing further evidence in proof of their contention that elections were held and cancelled in the 7 Polling Units ? Sure Power (Nig.) Ltd V FBN Plc (2018) LPELR-44161(CA) 22-23, E-A.
In the alternative, Counsel submits that the 1st and 2nd Respondents discharged the burden of proof on them in support of their contention that elections held and were
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cancelled. Reference is made to the evidence of PW74, the Respondents? State Collation Agent at the election of 22nd September and rerun election of 27th September, 2018 which, it is contended, was not impugned during cross-examination. Counsel therefore submits that evidence which is not challenged or controverted under cross-examination becomes good and credible evidence which ought to be believed and relied upon by a Court ? Asafa-Foods Factory V Alraine (Nig.) Ltd (supra) 375, A-C. He submits that the evidence of the PW74 was direct as to what he witnessed at the State Collation Centre where the elections were cancelled, and so does not constitute hearsay ? Iweka V FRN (2010) LPELR-4344(CA) 21, B-C. Thus, since the evidence adduced by the Respondents is unchallenged, the burden of proof is satisfied on minimal proof – Mobil V NOCM Co. Ltd (2000) 9 NWLR (Pt. 671) 44, 52, H.
Counsel further submits that considering the facts, circumstances and evidence adduced, the Tribunal properly applied the decisions of the Supreme Court in Doma V INEC (2012) 13 NWLR (Pt. 1317) 297; & Ikpeazu V Otti (2016) 8 NWLR (Pt. 1513) 38.
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In respect of the issue of waiver, Counsel adopts his submissions in the foregoing paragraphs. He also submits that the 1st and 2nd Respondents could not have commenced an election petition based on the election of 22nd September, 2018 because there had been no return at the election and the scheduled election had not been concluded. Reference is made to Sections 133(1) and 134(1) of the Electoral Act and PDP V Okorocha (2012) LPELR-7832(SC). The Petition challenged the validity of the cancellation of the election when the Constitutional threshold had been attained by the 1st Respondent. Thus, the issue of waiver cannot arise where the exercise of a constitutional right is in the control of the State, as in this case ? Ariori V Elemo (1983) 1 SCNLR 1, 19; Enigwe V Akaigwe (1992) LPELR-1145(SC) 39-41; & Ogbonna V AG Imo State (1992) LPELR-2287(SC). It is therefore submitted that the basis of their participation in the rerun of 27th September, 2018 was to enable the Petition crystallize to enable them challenge both the election and the rerun election.
?Counsel further submits that the doctrine of waiver and acquiescence cannot apply to a constitutional and
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statutory right having regard to Section 285(1) (a) (b) and (c) which gives the Tribunal power to hear the Petition under Section 285(2) of the Constitution, as well as the Fourth Alteration Act which provides that a Petitioner can only be competent to challenge an election if he participated in all stages of the election. It is therefore submitted that the doctrine of waiver does not apply to acts done in pursuance of the Electoral Law or Statute. In this vein, Counsel distinguishes the facts of this case with that in Sylva V INEC (supra) and submits that it does not apply to the instant case. He finally urged the Court to resolve issues 4 and 5 in favour of the 1st and 2nd Respondents.
Findings –
In view of the extensive submissions of learned Senior Counsel for the parties under this issue, I will start by examining their respective pleadings on the issue of whether or not elections were held at the 7 Polling Units; and whether they were cancelled. In paragraphs 16, 21(b) and 24 of the Petition (at pages 11 and 20 of the Record), the Petitioners pleaded thus:
?16. Your Petitioners aver that the election was scheduled to take place on
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22nd September, 2018 and on that day, the election took place and was concluded. That notwithstanding, the State Returning Officer rather than declare the result of the election, in a total breach of the Electoral Act, 2010 (as amended) and the dictates of the Constitution of the Federal Republic of Nigeria 1999 (as amended) on the declaration of a candidate as a duly elected Governor of a State, unilaterally, wrongfully and unlawfully cancelled 7 (Seven) Polling Unit results in 4 (four) Local Government Areas. Consequently, the 1st Respondent declared the election inconclusive and scheduled a rerun election for 27th September, 2018.? (Emphasis supplied)
?21. Your Petitioners present this Petition in the following manner:
B. That the Returning Officer of the 1st Respondent did not possess the legal right to cancel the Polling Unit results as he did in the following places:
OROLU LOCAL GOVERNMENT
a. Polling Units 1 and 4 in Ward 8;
b. Polling Unit 3 in Ward 9;
IFE NORTH LOCAL GOVERNMENT
a. Polling Unit 2 in Oyere II Alapata Village Ward 10
IFE SOUTH LOCAL GOVERNMENT
a. Polling Unit 012, Adereti Ward 7
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and
b. Polling Unit 010 in Osi Ward 8, RCM Primary School Aluti Erin
OSOGBO LOCAL GOVERNMENT
a. Polling Unit 017 in Ward 5?
?24. Your Petitioners aver that the 1st Respondent cancelled the result of the election in Seven Units, namely units 1 and 4 in Ward 8, Unit 3 in Ward 9 in Orolu Local Government Area; Unit 2 in Oyere II Alapata Village Ward 10 in Ife Local Government Area; Unit 012 in Adereti Ward 7, Unit 010 in Osi Ward 8 in Ife South Local Government Area and Unit 017 in Ward 5 Osogbo Local Government Area purportedly for the following reasons:
(a) Disruption in the aforementioned units in Orolu Local Government Area
(b) Malfunction of Card Readers in the aforementioned units in Ife South Local Government Area
(c) Over-voting in the aforementioned unit in Ife North Local Government Area
(d) No voting took place in the aforementioned unit in Osogbo Local Government Area.?
?In response to these paragraphs, INEC, the Appellant herein who was the 3rd Respondent before the Tribunal, responded in paragraphs 16 and 21 of its Reply to the Petition (at page 796, volume 3 of the Record) as follows:<br< p=””
</br<
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?16. The 1st Respondent in further reaction to Paragraph 21(b) of the petition states that the Returning Officer appointed by the 1st Respondent has the right under the relevant laws and manuals of the 1st Respondent to cancel any election and fix another date for a supplementary election as was done on the 22nd day of September, 2018 and 27th September, 2018 respectively.?
?24. The 1st Respondent admits the averment in Paragraph 24 of the petition only to the extent that the election in the 7 polling units namely Unit 1 and 4 in ward 8, unit 3 in ward 9 in Orolu LG Area, unit 2 in Oyere II, Alapata Village Ward 10 in Ife North Local Government Area, unit 012 Adereti Ward 7, unit 010 in Osi Ward 8 in Ife South Local Government Area and unit 017 in ward 5, Osogbo Local Government Area were cancelled as a result of corrupt practices, violence and non-compliance with the provisions of the Electoral Act, Electoral Guidelines and the Manual for the conduct of the election 2018.? (Emphasis supplied)
The 3rd Respondent herein, as 1st Respondent to the Petition, responded in his 1st Respondent?s Reply to the Petition, thus at
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paragraphs 16 and 17 of their Reply to the Petition (contained at page 631 Vol. V of the Record):
?16. The 1st Respondent in further reaction to Paragraph 21(B) of the petition states that the Returning Officer appointed by the 1st Respondent has the right under the relevant laws and manuals of the 1st Respondent to cancel any election and fix another date for a supplementary election as was done on the 22nd September, 2018 and 27th September, 2018.
17. In further reaction to paragraph 21 of the petition, the 1st Respondent avers that where the Presiding Officer discovers during the final collation of the Governorship results that the margin of win between the two leading candidates is not in excess of the total number of registered voters of the polling unit(s) where elections were cancelled or not held, the returning officer shall decline to make a return until another poll has taken place in the affected polling unit(s).?
While the 2nd Respondent herein as 2nd Respondent to the Petition, responded at paragraphs 22-24 of the 3rd Respondent?s Reply to the Petition at page 1546 Vol. III of the Record of Appeal, thus:<br< p=””
</br<
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?22. In further reaction to Paragraph 21(B) of the petition the respondent states that the petitioners are indeed confused in that while they are saying at paragraph 21B that the Returning Officer of the 1st Respondent did not possess the legal right to cancel the polling unit results of the units mentioned therein, the same petitioners admitted at paragraph 24 of the petition that it was the 1st Respondent that cancelled the result of the election in the same seven units they mentioned under paragraph 21(B).
23. Still in further reply to paragraph 21(B), the respondent avers that the 1st respondent is imbued with power under the Electoral Act and as also stated in the manuals of the 1st Respondent to cancel the election and to fix another date for a supplementary election as was done on the 22nd September, 2018 and 27th September, 2018 respectively.
24. In further reaction to paragraph 21 of the petition the respondent states that where the Returning Officer discovers during the final collation of the Governorship results that the margin of win between the two leading candidates is not in excess of the total number of registered voters of
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the polling units(s) where elections were cancelled or were not held, the returning officer shall decline to make a return until another poll has taken place on the affected polling unit(s).
By these pleadings, it is apparent that the 1st Respondent to the Petition was silent or at best ambivalent on whether elections were held and cancelled. However, he states that the Returning Officer had the power to cancel the elections. The Appellant admits to cancelling the election as a result of corrupt practices, violence and non-compliance with the provisions of the Electoral Act, and she stated that the Returning Officer had the power to cancel elections and reschedule supplementary elections in those situations; while the 2nd Respondent therein took the position that elections in the said Polling Units were rightly cancelled for the reasons already stated by the Respondents in paragraph 24 of the Petition and that the Returning Officer had the right to cancel them.
?What is therefore apparent from the parties? pleadings set out above is that the Appellant, as well as the 1st and 2nd Respondents before the Tribunal, were on the same page that
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elections were cancelled in the specified 7 Polling Units, and this directly led to the rescheduling and holding of the rerun election in the 7 Polling Units on 27th September, 2018. The law is settled that an admission is an act of acceptance or concession to a factual situation. In the case of Alhassan & Anor V Ishaku (2016) LPELR-40083(SC) 20, E-F, Rhodes- Vivour, JSC stated succinctly that ?
?Sections 20 and 21 of the Evidence Act provides for admission. Admissions in pleadings are a waiver of all controversy on the fact the pleader admits.?
?However, the exception to this is where the Plaintiff/Claimant/Petitioner seeks declaratory reliefs. It then becomes a different kettle of fish. The law is settled that declaratory reliefs cannot succeed even on an admission by the opposing side. The reason is that a declaratory action is discretionary in nature. It is a species of civil action whose purpose is to seek an equitable relief in which the Plaintiff prays the Court, in the exercise of its discretionary jurisdiction, to promote or declare an existing state of affairs in law in his favour, as may be discernible from the
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averments in the statement of claim or pleadings from the claimant. Hence, the onus of proof here lies on the petitioners. They must succeed on the strength of their own case and not on the weakness of the defence, except where the case for the defence supports the Respondents? case. See: Akande V Adisa (2012) LPELR-7807(SC) 38-39; AG Cross River V AG Federation (2012) LPELR-9335(SC) 48; Buhari V Obasanjo (2003) 17 NWLR (Pt. 850) 587; & CPC V INEC (2011) 8 NWLR (Pt. 1279) 493.
In the more recent case of Omisore V Aregbesola (2015) LPELR-102-103, per Fabiyi, JSC held as follows:
?I should note it briefly that the Appellants sought declaratory reliefs before the Tribunal. They had the burden of proof to establish such declaratory reliefs to the satisfaction of the Court or Tribunal; as herein. Such declaratory reliefs are not granted even on admission by the defendant where a claimant, as herein, fails to establish his entitlements to the declaration by his own evidence. See Dumez Nig. Ltd V Nwakhoba (2008) 18 NWLR (Pt. 119) 361, 373; Ucha V Elechi (2012) MRSJ Vol. 179, 104; (2012) 4 SCM 28; (2012) 12 NWLR (Pt. 1317) 230.?<br< p=””
</br<
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The learned Jurist went further to hold at page 104 of the E-Report thus:
?The trial Tribunal found that the appellants failed to prove substantial non-compliance. Same was affirmed by the Court below. The appellants attempted to push the burden of proof of their declaratory reliefs at the door steps of the respondents. Such was not in tune with the law. Since the appellants failed to prove non-compliance, they could not depict in clear terms that non-compliance substantially affected the outcome/result of the election. The issue must be resolved in favour of the respondents, without much ado.? (Emphasis supplied)
See also Babatola V Adewumi (2011) LPELR-3945(CA) 44; Okonkwo V Okonkwo (2010) LPELR-9357(SC) 34, per Adekeye, JSC;
?Thus, judicial pronouncements are ad idem on the principle of law that declaratory reliefs cannot properly be granted on mere admissions by the Respondents on their pleadings. The law requires the Petitioners to go further to provide proof or to adduce sufficient evidence of his entitlement to the reliefs claimed in order to justify or warrant the grant of the declarations sought. A declaratory Judgment
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founded on an admission cannot be allowed to stand in law.
At the risk of being prolix, it needs to be emphasized that a declaratory relief is one that seeks the pronouncement of the Court as to the status of a named matter, thing or situation. A claimant seeks the Court to declare as established a legal and factual state of affairs in respect of a cause of action; and he does no more than invite the Court to declare what the position of the law is on the issue. Thus, in a declaration, the claimant must call evidence that will satisfy the Court to make the declaration sought. He cannot afford to rest on his oars on the erroneous belief that as, in matters where non-declaratory reliefs are sought, an admission from the opposing side will suffice. That is not so. Therefore, he fails to adduce evidence sufficient to establish his claim, at his own peril.
Declarations are equitable reliefs and so the party seeking such must present the material(s) upon which the Court will act to so declare. That is why admissions in pleadings cannot be the basis for declaratory reliefs. This is the raison d?tre of the principle of law. On the basis of all
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the above, I discountenance the arguments of the Respondents that the admissions in the pleadings should be acted upon by this Court to find against the Appellant under this issue. Instead, they are required to prove by positive evidence that elections in the 7 Polling Units took place on the date in question, in spite of the acts expressly pleaded by them in paragraph 24 of the Petition, to wit: disruption of the election, malfunction of card readers, over voting and even non-voting. They then also have to prove that elections having been held and concluded, results were prepared, available and submitted by the Presiding Officers in the Forms EC8A, and that thereafter, the results were cancelled, as they averred in their Petition. It is only thereafter that the issue of whether or not the cancellation of the elections by the Returning Officer was proper, could arise.
?However, it is apparent from the submissions of the Respondents in their Brief of argument that at the Tribunal, they simply glossed over their duty and responsibility by law to prove the basic assertions made by them in seeking declaratory reliefs, before reaching the conclusion that the
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Returning Officer had no power to cancel the elections as he did. By paragraph 21(b) of the Petition, the Respondents pleaded thus:
?The Returning officer of the 1st Respondent did not possess the legal right to cancel the polling units result as it did.?
This was done under the erroneous assumption that they could rely on the admissions (if any) of the Appellant in its pleadings. Unfortunately, this is not so as the law is not on their side. Indeed the Tribunal fell into the same error when it also found that the Respondents to the Petition admitted that elections held and were concluded in the 7 Polling Units, and that they were thereafter cancelled.
Therefore, by the same token, I find that the holding of the Tribunal (at page 3915 Vol. V of the Record) where it held that:
?It follows that the rerun election built on the unlawful and ultra vires cancellation of the election in 7 polling units cannot stand being a product of illegality.?
was made in error.
This is more so that the only evidence adduced before the Tribunal to substantiate the cancellation was through the PW74. PW74 was the State Collation
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Agent of the Respondents and from his evidence, he was admittedly not at the 7 Polling Units were he contended that elections were cancelled. Therefore, his evidence only consists of the fact that, as the Respondents? State Returning Agent, it was the State Returning Officer who cancelled the elections in the 7 Polling Units. The issue which has arisen from this is, whether the State Returning Officer had power to cancel the results emanating from the Polling Units as he is said to have done. Therefore, assuming that the evidence of this witness was not hearsay, as afore-stated, evidence of the very basis of the cancellation was not placed before the Tribunal, id est the results of the election from the said Polling Units, either the CTC copies or the pink copies.
It is trite that the responsibility of proving any fact rests on the party who asserts same – Section 131 of the Evidence Act, 2011 (as amended) and Ojoh V Kamal (2005) 18 NWLR (Pt. 958) 523, 565. It is interesting that the Respondents, in proving their allegations of over-voting and non-compliance, produced several copies of the Forms EC8A from the Polling Units in form of the CTC copies
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as well as the counterpart copies given to their polling agents, otherwise referred to as the ?pink copies?. However, they failed to produce before the Tribunal either the pink copies of the results from the 7 Polling Units given to their Polling Agents to prove ab initio that elections were held before they were cancelled, or the CTC copies from INEC. The burden of proof lay squarely on them to prove this and not on the Respondents to the Petition.
In addition, even the detailed results that should have been announced at the 7 Polling Units, if indeed elections held as contended by the Respondents, were neither pleaded nor proved. As a result, no evidence oral or documentary was adduced to prove the holding of elections to conclusion, the results of the elections conducted and thereafter the cancellation of elections in the 7 Polling Units. As earlier held, the alleged admissions of the Respondents to the relevant paragraphs of the Petition cannot avail the Petitioners because the reliefs sought in the Petition were mainly declaratory.
?Also, as aforesaid, since the PW74 (who was the only witness who testified on the cancellation of
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results), was not at the 7 Polling Units, his evidence outside of what transpired at the State Collation Centre, constituted hearsay. See Okechukwu V INEC (2014) 4 NWLR (Pt. 1438) 255.
Thus, the existence of the results from the 7 Polling Units that would ground an inquisition into the powers of the State Returning Officer to cancel the elections in the 7 Polling Units remained unproved. Therefore, I agree with the Appellant that the finding of the Tribunal that the cancellation of the elections, whose results were not placed before it, was improper. This is because the results must first exist and proved to exist by the production of the results, before the Tribunal would be seised with jurisdiction to invalidate the cancellation. In the cases of Doma V INEC (2012) 13 NWLR (Pt. 1317) 297 and Ikpeazu V Otti (2016) 8 NWLR (Pt. 1513) 38, 82 relied on by the Tribunal, the election results in the Polling Units were placed before the various Tribunals. The Supreme Court therefore mandated that the scores therein be integrated and computed into the final results of the elections.
In particular, in the case of Ikpeazu V Otti (supra), the case
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of the Petitioners at the trial Court was that the State Returning Officer cancelled Polling Units results and by virtue of the cancellation, the said officer ought to have returned the Petitioners as duly elected but that instead, he revalidated results cancelled by him. The Supreme Court gave the consideration for its decision thus at page 84 of the Report:
?Appellant pleaded that there was unlawful cancellation of results in those three LGAs since the cancellation of result is a matter of law governed by the provisions of the Electoral Act and the State Returning Officer cannot cancel result in an election that had already been concluded and results declared at the polling units.?
Thus, after holding that the results were wrongly cancelled, the Supreme Court held that the Appellant was the winner of the election based on the revalidated results.
Likewise, in Doma V INEC (supra) at page 325, the Supreme Court overruled the Court of Appeal in reinstating the Tribunal?s decision with respect to the cancellation of Polling Units? results. The findings of the Tribunal reinstated by the Supreme Court in Petition No:
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EPT/NS/GOV/1/2011 Doma V INEC delivered on 12th November, 2011, stated as follows at page 77-78 thereof:
?A collation officer cannot do so, as his duty is limited to receiving Forms EC8A from presiding officers and/or any report of anomalies from them. The purported cancellation of the result of Oshugu unit by the collation officer cannot stand. We therefore find and hold that the 500 votes in favour of PDP and the 90 votes in favour of CPC as contained in exhibit 19 are are valid votes that should be counted and added to the scores of the respective parties.
In respect of Anna polling unit, quite contrary to the deposition of the presiding officer (DW4) that the original result sheet in Form EC8A was taken away by thugs who intimidated him into entering results at random ? it does not seem to us that the mere fact of the entry of result of the duplicate original of Form EC8A constitutes a justifiable basis for rejecting the result submitted by the presiding officer of the unit? This being so, the result for Anna town polling unit as contained in exhibit 18 wherein PDP scored 1156 votes while CPC and all other
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political parties scored ?zero?, curious as it seems ought not to have been excluded.? (Emphasis supplied)
Consequently, by these decisions, a Petitioner, relying on illegal cancellation of results, ought to give direct and cogent evidence of the conclusion of elections and declaration of results, as well as tender the Forms EC8A in the manner in which the Petitioners in Doma V INEC (supra) tendered same as Exhibits 15 and 18.
In the instant case, by the pleadings of the Petitioners in paragraph 24 of the Petition, it is evident that elections were not concluded in the 7 Polling Units. Therefore, paragraph 24 (supra) is adverse to the claim of illegal cancellation made by the Petitioners since by the reasons for the cancellation of the results given in paragraph 24(a) to (d) thereof which included disruption of election, malfunction of card reader, over-voting and in particular, ?no voting took place?, show that there were no results from the said Polling Units.
?Consequently, it is evident that the very pleadings of the Respondents in this regard were contradictory. For while they pleaded in paragraph 21(B) that
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election results were cancelled, they proceeded to state in Paragraphs 24(a) & (c) that there was disruption of the election, malfunction of card readers and no voting in the 7 Polling Units. Based on these pleadings coupled with the fact that the Respondents failed to tender any Polling Units results from the 7 Polling Units or even advance oral evidence through field eyewitnesses at the 7 Polling Units, the only conclusion to be drawn is that no elections were held or that no elections known to law were held, therefore justifying the declaration of the election as inconclusive.
In a similar scenario presented in INEC V Sylva (supra), the Supreme Court held at page 108 of the report as follows:
?My lords, from the excerpts as above, it is now beyond peradventure that even if there was an election on 6/12/15 in Ijaw Southern Local Government Are, that election was found to be inconclusive as it was also found to be marred by widespread violence, high scale malpractices and other serious irregularities which rendered the process inconclusive and unacceptable. There was therefore no election known to law that took place in the whole of
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Southern Ijaw Local Government Area. That of course was the reason why security operatives and political parties made the reports that the election did not take place in Ijaw Southern Local Government Area on 6/12/2015.?
In view of all the above, I am obliged to hold that the Respondents failed to prove that elections were duly held at the 7 Polling Units, results issued, which results were subsequently wrongly cancelled by the Returning Officer. With regard to the assertion of wrongful cancellation of the results by the Returning Officer, the Respondents pleaded in paragraph 101(i) of the Petition that they will rely on the Press Release containing INEC?s decision to declare the election of 22-09-18 inconclusive and rescheduling a rerun election. In paragraph 101(xi) thereof, they also pleaded that they will rely on the Form EC40G, amongst others. Since they failed to present these documents to the Tribunal, the Tribunal could not have exercised its jurisdiction to grant Relief 3 setting aside INEC?s decision to order a rerun election in the absence of these documents placed before him.
?Having pleaded the documents, the
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Respondents were thereby contending positively that such documents were in existence. It was therefore incumbent on the Respondents to have produced them before the Tribunal as they pleaded that they would. Having failed to do so, the presumption of law is that if produced, the information in the documents would be unfavourable to them – Section 167(d) of the Evidence Act, 2011(as amended). Thus, the Tribunal was in error when it shifted the burden of proof from the Respondents to the Appellant since it was Respondents? case, as canvassed on their pleadings, that would fail if the said evidence was not produced, the Respondents having sought for declaratory reliefs for the setting aside of INEC?s decision contained in the documents pleaded by them.
?Indeed, the failure of the Respondents to produce the results from the 7 Polling Units, which they pleaded were concluded, results issued and then subsequently cancelled, was grievous and fatal to their complaints on this score. It is significant also that no relief was sought by the Respondents for the Tribunal to reinstate the results allegedly cancelled, therefore reinforcing the conclusion that
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the results did not exist in the first place. I therefore agree that this has rendered the complaint of the Respondents in respect of the cancellation of the elections in the 7 Polling Units academic and/or hypothetical, as there is no evidence that elections held and were concluded in the said Polling Units and that the results allegedly cancelled were actually in existence.
Since the Tribunal refused Reliefs (viii) and (ix) of the Petition which sought to invalidate Paragraph 44(n) of the INEC Guidelines in respect of the power of INEC to hold supplementary or rerun elections, the Tribunal should have peremptorily dismissed the challenge to the re-run elections held, the Respondents having failed to prove that any elections known to law were held in the 7 Polling Units. This is even more so that the Supreme Court in Faleke V INEC (2016) 9 SC 31, pages 165-166, has validated the power of INEC thus:
?I share the views of both the Tribunal and the lower Court that the election held on 21/11/2015 was inconclusive as rightly declared by INEC because it had cancelled the elections held in over 91 polling units. It would therefore be premature then
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to declare a winner at that stage as it rightly decided to hold a supplementary election which it had power to so do under Section 160(1) of the Constitution and Sections 73 and 153 of the Electoral Act, 2010 (as amended) and also under the Manual for Electoral Officers ? the cancellation of elections held in 91 wards by INEC on 21/11/2015 was therefore in order and lawfully made since it had cause to believe that there were malpractices, hence it rightly cancelled the election in those affected units? I hold the view that INEC could not have declared or returned any winning candidate at that stage, until after holding supplementary election and declaring result of same
Therefore, in the light of all the above, I find that the Tribunal was in patent error when it set aside the re-run elections of 27th September, 2018, especially since it had found as a fact that the re-run elections were not marred by corrupt practices and other electoral infractions alleged by the Respondents. This has undoubtedly led to the unwarranted disenfranchisement of the electorate in the 7 Polling Units.
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On what the doctrine of waiver entails, the Supreme Court, per Tobi, JCA (as he then was), in the case of Caribbean Trading & Fidelity Corp. V NNPC (1992) 7 NWLR 252, 161 held thus:
?Waiver carries some form of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of law will hold that he has waived his right.?
See alsoUdonte V Bassey (1999) 5 NWLR (Pt. 604) 61, 68-69. Thus, implicit in the principle of waiver is that a person will not be allowed to complain against an irregularity which he himself has accepted and waived or acquiesced in.
?In respect of this Appeal, there is no dispute as to the fact that an election was conducted on 22nd September, 2018. For reasons which are controversial, the umpire at the election, INEC, declared the election inconclusive and so declined to announce and declare any of the contestants in the election as a clear winner. She therefore rescheduled a rerun election for the 27th September, 2018 in order to arrive at a
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conclusive result of the election. The two contestants who scored the highest votes again went head to head in the election, at the close of which, INEC declared the Appellant herein as the winner of the election.
The Appellant?s contention now is that the Respondents, having elected to participate in the rerun election had forfeited their right to complain about the outcome of the election as, by simply participating in the election, they have waived their rights. It is on this basis that reliance was placed on the decision of the Supreme Court in Sylva V INEC (supra).
?In the instant case, there is no evidence on record that the 1st and 2nd Respondents protested the Order made by INEC to conduct a re-run election on the 27th of September 2018 due to the fact that elections could not hold in 7 Polling Units, in the State on the 22nd September 2018. They had a choice, to indicate that they did not agree with the position of INEC. That at least, would have shown their dissatisfaction with it. Instead, they accepted the decision of INEC and went on to participate in the re-run election, scored votes which were counted in their favour. At any
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rate, even if they had protested, the fact of their participation in the re-run is what has amounted to the waiver of their right. This is because all the cases they cited and relied upon in submitting that a constitutional right cannot be waived, are general statements of law and are not apt. The right to conduct a re-run is constitutionally donated to INEC, and it cannot waive that right. It is not a right given to the 1st and 2nd Respondents. The right given to them is a private right to participate in the re-run election, and clearly, they had a choice not to do so, i.e. to waive it. So Menakaya V Menakaya (2001) LPELR-1859(SC) is not helpful. The more recent case and apt to the point in issue is Sylva V INEC (supra). The Supreme Court therein resolutely laid down the law where a similar situation arises. The facts therein bear close similarities to the case at hand. Muhammad, JSC (now Acting CJN) held-
the appellants fully participated in the rescheduled election of 9/1/2016, one is poised to ask why the appellant took part in the rescheduled election?. of 9/1/2016?.. Their participation in the rescheduled election has shown
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by their conduct, they had waived their right to protest any longer and are caught up by the cobwebs of both waiver and estoppel
This is a direct and unambiguous pronouncement of the law regarding the participation, by a candidate in an election, of a re-run election, scheduled by INEC. Once he so participates, he will not be allowed to challenge the validity of the re-run election as he would be deemed to have waived his right This Court is bound by this decision. The mis- advice thrown on the way of the 1st and respondent to participate in the re-run has, in law, prevented them from challenging its validity, once they participated, the right to protest had slipped off and they have to be bound by the outcome. If it worked in their favour, well and good. If not, they have to embrace the fate. The Tribunal was in error when it failed to apply Sylva V INEC (supra) and went on to hold that the 1st and 2nd respondents did not waive their right to challenge the validity of the re-run election. But I have to make it clear, that the 1st and respondents are not estopped from challenging the outcome of the re-run election on eligible
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grounds. They can do so. It is the validity of the election that they are estopped from challenging or attacking. Based on all the foregoing, issues 4 and 5 are resolved in favour of the Appellant and against the 1st and 2nd Respondents.
In the result, having resolved all five issues in favour of the Appellant, the Appeal has merit and it succeeds.
Accordingly, I allow the Appeal and set aside the Judgment of the Osun State Governorship Election Tribunal in Petition No: EPT/05/GOV/01/2018 delivered on 22nd March, 2018.
I make no Order as to costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading judgment of my learned brother SANKEY JCA just delivered and I am in agreement with his reasoning and conclusion. I find merit in the appeal and I allow it. I set aside the Judgment of the Tribunal delivered on the 22nd March 2019.
?ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA before it was delivered. I agree with the reasoning and conclusion therein and I allow the appeal. I abide by the consequential
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Orders.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother, SANKEY, JCA. I agree with my learned brother in the leading judgment that this appeal has merit and I join his lordship in upholding it. I therefore set aside the majority judgment of the lower Tribunal in Petition NO. EPT/05/GOV/01/2018 delivered on 22nd March, 2018.
I make no order as to cost.
ITA GEORGE MBABA, J.C.A. (DISSENTING): Appellant, Independent National Electoral Commission (INEC) filed this Appeal on 28th March, 2019, against the Judgment of the Osun State Governorship Electoral Petition Tribunal, holden at Abuja in Petition NO. EPT/05/GOV/1/2018, delivered on 22/3/2019, wherein The Hon. Tribunal, in a majority judgment of two members, found merit in the petition, nullified the election of the Respondent (now 3rd Respondent) and ordered the return of the 1st petitioner (now 1st Respondent) who was sponsored at the election by the 2nd petitioner (now Respondent). The Minority decision of the Chairman of the Tribunal, however, in a dissenting judgment, dismissed the petition.
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Appellant had conducted elections into the office of Governor of Osun State on 22nd September 2018 with the Respondent, Senator Ademola Nurudeen Adeleke, contesting on the platform of the 2nd Respondent, Peoples Democratic Party (PDP), while the 3rd Respondent, Adegboye Isiaka Oyetola, contested the said election on the platform of the 4th Respondent, All Progressive Congress (APC). Forty six (46) other political parties also sponsored candidates who contested the said election, and at the conclusion of the election on 22/9/2018, the Appellant announced results and credited the Respondent of PDP (2nd Respondent) with 254,698 votes and 3rd Respondent of APC (4th Respondent) with 254,345 votes and proceeded to say that the election was inconclusive, because the margin of victory between the PDP and the APC was less than the total number of registered voters in the 7 (seven) polling units across 4 Local Governments Areas of Orolu, Ife North, Ife South and Osogbo, where elections were cancelled or did not hold. Appellant therefore scheduled a supplementary (re-run) election on 27th September, 2018 for the said 7 polling units. The Political Parties, including the
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Respondents, took part in the said supplementary (re-run), election of 27/9/2018, and at the conclusion, the 3rd Respondent of 4th Respondent (APC), was declared the winner of the overall election with 255,505 votes as against the 1st Respondent (of 2nd Respondent) who was credited with 255,023 votes. The results were declared on 28/9/2018 and being aggrieved, the 1st and 2nd Respondents, as Petitioners, filed petition on 16/10/2018, challenging the declaration of the candidate of the 4th Respondent (APC) as the winner of the polls, predicating the petition on 3 grounds, as follows:
i) That the 2nd Respondent was not duly elected by majority of lawful votes cast at the Governorship Election in Osun State held on September 22, 2018 and the Re-run election held on September 27, 2018.
ii. That the declaration and return of the 2nd Respondent as Governor of Osun State is invalid by reason of substantial non-compliance with the provisions of the Electoral Act 2010 (as amended), during the Governorship Re-run election in Osun State of September 27, 2018.
iii) That the declaration and return of the 2nd Respondent as Governor elect of Osun State is
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invalid by reason of corrupt practices, during the Governorship Re-run in Osun State on September 27, 2018. (Pages 9 – 10 of the Records of Appeal).
The Petitioner thereupon, sought the following Reliefs:
i) That it may be determined and thus declared that the Respondent Adegboyega Isiaka Oyetola was not duly elected and/or returned by a majority of lawful votes cast in the Osun State Governorship election held on Saturday, 22nd September and the Rerun election of Thursday, 27th September, 2018 and therefore his declaration and return as the governor elect of Osun State is null, void and of no effect, whatsoever;
ii) That it may be determined and thus declared that the 1st petitioner having fulfilled the requirements of Section 179(2) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, in respect of the Osun State Governorship Election held on the 22nd September, 2018, is the winner by 353 votes margin in the said Election having scored a total votes of 254,698 while 2nd Respondent scored 254,345 votes.
iii) That it may be determined and thus declared that the 1st Petitioner having satisfied the
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provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and the Electoral Act, 2010, as amended, in respect of the election of 22nd September, 2018, the act of the 1st Respondent in ordering a Rerun election of 27th September, 2018 is invalid, void and of no effect whatsoever, howsoever.
iv) That it may be determined and thus declared that the Re-run Election held on 27th of September, 2018 is invalid by reason of corrupt practices, substantial non-compliance and offences against the provisions of the Electoral Act 2010 (as amended).
v) That it may be determined and thus declared that the re-run election of 27th September, 2018 and the return of the Respondent are voided by acts which clearly violate and are in breach of the provisions of the Electoral Act, 2010 (as amended), including but not limited to rigging and manipulation of election results, unprecedented acts of violence, unlawful allocation of votes, thuggery and coercion of voters, committed at the towns, villages, other communities, wards and Polling Units aforementioned in Osun State as well as unlawful interference in the electoral process by the
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Respondents.
vi) That it may be determined and thus declared that the results of the Re-run Governorship election Osun State held on Thursday 27th September, 2018 as declared and announced by the 3rd Respondent be nullified and to be of no effect whatsoever.
vii) An order of this Honourable Tribunal nullifying the Certificate of Return issued to the 2nd Respondent by the 1st Respondent.
Viii) A declaration that paragraph 44(n) of the Respondent’s approved Guidelines and Regulations for the Conduct of the Osun State Governorship Election 2018 is void, because it (a) is in conflict with the Electoral Act, 2010, as amended and the Constitution of the Federal Republic of Nigeria 1 999 (as amended) and/or (b) has the effect of expanding or amending the Electoral Act, 2010, as amended and the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (c) confers additional powers on the Respondent, which were nether conferred nor envisaged in the Electoral Act, 2010, as amended and Constitution of the Federal Republic of Nigeria 1999 (as amended).
ix) An order striking down and nullifying Paragraph 44(n) of the Respondent’s
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Approved Guidelines and Regulations of the Conduct of the Osun State Governorship Election 2018 because it (a) is in conflict with the cumulative provisions of Sections 69 and 70 of the Electoral Act, 2010, as amended, and Section 179 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (b) has the effect of expanding or amending the cumulative provisions of Sections 69 and 70 of the Electoral Act, 2010, as amended, and the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (c) confers additional powers on the 1st Respondent which were neither conferred nor envisages by the cumulative provisions of Sections 69 and 70 of the Electoral Act, 2010, as amended, and Section 179 of Constitution of the Federal Republic of Nigeria 1999 (as amended).
x) A declaration that the Respondents manipulated, altered, amended the card reader accreditation data/accreditation on Forms EC8A at Osogbo, Olorunda, Ola Oluwa, Boripe, Ilesha East, Atakumosa East, Ife Central, Ife North, Ife South, Iwo, Egbedore, Egbedore, Ayedire, Ayedaade and Ejigbo Local Government Areas of Osun State.
xi) A declaration that by virtue of
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the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended), the 1st Respondent’s press release and pronouncement (through the Returning Officer) on the 23rd of September, 2018 that the election conducted for the office of Governor of Osun State on the 22nd of September, 2018 was inconclusive was null, ultra vires, unlawful and of no effect whatsoever, howsoever.
xii) A declaration that the Respondent’s decision to order for the conduct a rerun election for the office of the governor of Osun State conducted in the following seven Polling Units – Polling Unit 012, Adereti Ward 7 and polling Unit 010 in Osi Ward 8 of Ife South Local Government; polling Unit 2 in Oyere 11 Alapata Village Ward 10 in Ife North Local Government; Polling Unit 017 in Ward 5 in Osogbo Local Government; Polling Units 1 and 4 in Ward 8, Polling Unit 3 in Ward 9 in Orolu Local Government On the 27th of September, 2018 was null, void, ultra vires, unlawful and of no effect whatsoever, howsoever.
xiii) An order nullifying the result of the rerun election into the office of the governor of Osun State conducted on the rerun
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election of 27th of September, 2018 for being null, void, unlawful, ultra vires and of no effect whatsoever, howsoever.
xiv) An order nullifying and or cancelling all votes in all Polling Units where the Petitioners have established over-voting and non-accreditation during the Osun State Governorship Election of 22nd day of September, 2018.
xv) A declaration that neither the 2nd Respondent nor 3rd Respondent scored the majority of lawful votes cast at the election to the office of the Governor of Osun State held on 22nd of September, 2018, upon cancellation by this Tribunal of the unlawful votes allotted to the 2nd and 3rd Respondents in all the Polling Units where there were over voting and non-accreditation.
xvi) A declaration that Your Petitioners scored the majority of lawful votes cast at the election to the seat of the governor of Osun State held on 22nd of September, 2018 and the 1st Petitioner Senator Ademola Nurudeen Adeleke is therefore entitled to be returned as the duly elected governor of Osun State.
xvii) An Order returning your petitioners as the winner of the election to the office Of Governor of Osun State held on the
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22nd of September, 2018 and the 1st Petitioner Senator Ademola Nurudeen Adeleke as the duly elected Governor of Osun State.
IN THE ALTERNATIVE;
xviii) An order declaring your Petitioner as the winner of the election to the officer of Governor of Osun State held on the 22nd September, 2018 and the Rerun election of 27th of September, 2018 and that the 1st Petitioner Senator Ademola Nurudeen Adeleke is the duly elected Governor of Osun State based on the Scores of the valid votes of the Parties after deduction of the votes affected by total votes exceeding accreditation and votes affected by non-recording of accreditation as follows
APC PDP
Scores of Parties as declared on
form EC8D 255,505 255,023
Less: Votes Affected by Total Votes 8,694 5,119
Exceeding Accreditation
Less: Votes affected by non-recording of
accreditation 5,476 3,270
SCORES OF PARTIES AFTER
DEDUCTION 241,335 246,634
THE DIFFERENCE SHOWING THE MARGIN OF WINNING IS 5,299 IN FAVOUR OF PDP.
xix) An Order directing the Respondent to issue your 1st Petitioner Senator Ademola Nurudeen Adeleke with the Certificate of Return forthwith.<br< p=””
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xx) Cost of the Petition.”
The petition was accompanied by List of Documents, List of witnesses and witness statements On oath. Appellant filed its Reply against the Petition (as did other Respondent to the, Petition with its accompaniments and the Petitioners filed distinct Replies to the respective by the Appellant and the other Respondents. At the trial the parties called witnesses who gave evidence and tendered documents which were admitted as exhibits but Appellant called no witness of its own. The Petitioners called 80 witnesses; 3rd Respondent called 11 witnesses and 4th Respondent 2 witness.
?After the hearing and consideration of the evidence and address of counsel, the Tribunal found in favour of the Petitioners, dismissed the objections to the competence of the Petition, raised by 3rd and 4th Respondents, and held that the reliefs sought by the Petitioners (1st and 2nd Respondents) complied with the law, except reliefs 8 and 9 which the Tribunal could not grant. It held that the Petition was not statute barred and was not caught by the doctrine of waiver. It dismissed the application challenging objection to votes in the table forms and
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said that, except for some paragraphs of the 1st and 2nd Respondents Reply, 3rd and 4th Respondents respective Replies, the Replies and the witness statements thereto, were competent.
On the merit of the Petition, the Tribunal found that the allegation of lack of qualification of 1st Respondent was not proved; that even though the results declared during the election enjoyed presumption of regularity and correctness, the 1st and 2nd Respondents herein were able to rebut that presumption in respect of some identified cases; that the allegation of deliberate voiding of ballots due to multiple thumb printing, was not proved; that there was admission by the 1st and 2nd Respondents witnesses that the votes of the parties were the same on both the certified true copies and pink copies of Form EC8A tendered before the Tribunal; that no voter voted twice and that over – voting was not proved; that there was no evidence of lack of accreditation, as voter registers were merely dumped at the tribunal; that allegation of over voting remained bare and unproved; but that it was mandatory for the eight columns on the top of Forms EC8A to be filled, having regard to Exhibit P615
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(the Manual for Election Officials); that the non-recording of the information on the columns was deliberate and designed to achieve an unwholesome result; and the non-filling of the columns amounted to non-compliance with the Electoral Act and Manual which rendered invalid the election in the seventeen (17) polling Units affected thereby; and that the invalidated votes thereof were substantial, having regards to the margin of difference in scores of the parties at both elections; also that the seven polling units results, which were cancelled by the State Returning Officer at the election of 22/9/2018, were unlawfully cancelled; that estoppel was not applicable; however, that allegation of commission of electoral crimes during the re-run election were not proved and accordingly, dismissed; that votes recorded for the parties from the units, which FORM EC8A columns was not fully filed should be deducted from the votes for the parties; that reliefs 1 – 6 be granted to the 1st and 2nd Respondents. (See pages 3875 to 3927 of the Records).
It is against the above decision that Appellant (INEC) brought this appeal (being one in solidarity with the other two
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appeals filed by the 3rd and 4th Respondents, respectively). See the Notice and grounds of appeal, filed on 28/3/2019, on pages 3969 – 3994 of the Records of Appeal disclosing 22 grounds Of Appeal. Appellant filed its Brief of argument on 9/4/2019 and distilled 5 issues for the determination of the Appeal as follows:
1) “Whether the Trial Tribunal was correct in granting declaratory reliefs in favour of the 1st and 2nd Respondents, when they failed palpably to proffer cogent, compelling, credible, believable and admissible evidence to establish their entitlement to it, and whether the Appellants have any duty to proffer any contrary evidence when the 1st and 2nd Respondents did not make out a prima facie case (Grounds 1 and 22).
2) Whether the Trial Tribunal was correct in holding and coming to the conclusion that 1st and 2nd Respondents rebutted the presumption of law that enurred in favour of the Electoral documents tendered at the Trial after the same Tribunal had correctly held that the documents were dumped on the Tribunal and there was no credible oral evidence linking the exhibits to any aspects of the case of the 1st and 2nd Respondents. (Grounds
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2, 3, 5, 6, 7, 8 and 9).
3) Whether the Trial Tribunal was correct in holding that the alleged failure to fill some columns in FORM EC8As was fatal and amounted to act of non-compliance that adversely affected the result of the election in 17 polling units and thereby deducing the valid votes scored by the parties when:
a) The finding was reached per in curiam;
b) There was no credible cogent admissible evidence to support the finding;
c) The Tribunal misconstrued the provisions of the Manual for Electoral Officers and the Guidelines. (Grounds 4, 10, 11, 12, 20 and 21).
4) Whether the Trial Tribunal was correct in declaring the Re-Run Election of the 27th September, 2018 illegal, on the ground that it was the State Returning Officer that cancelled the results in 7 Polling Units, that the appellant has no power to Order a rerun, and that the burden of proving that the cancellation and re-run were lawful was on the appellant, when this was clearly not so having regard to the pleadings and the evidence led. (Grounds 13, 14, 15, 16 and 17).
5) Whether the Trial Tribunal was right in holding that the 1st and 2nd Respondents were not
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caught by the principle of estoppels, having taken part in the re- run election of 27th September, 2018. (Ground 18).”
The 1st and 2nd Respondents filed their Brief of arguments on 19/4/2019 and also distilled 5 issues for the determination of the appeal, as follows:
i) “Whether the Tribunal was correct in granting the reliefs in favour of the 1st and 2nd Respondents, having made out case against the Appellant as well as the 3rd and 4th Respondents. (Grounds 1 and 22).
2) Whether the lower Tribunal was correct in holding and coming to the conclusion that the 1st and 2nd respondents rebutted the presumption of law inured in favour of the electoral documents tendered at the trial. (Grounds 2, 3, 5, 6, 7, 8 and 9).
3. Whether the Tribunal was correct when it declared invalid, the result in seventeen (17) Polling Units and held that and 2nd Respondents established acts of non-compliance which affected the election. (Grounds 4, 10, 11, 12, 20, 21).
4) Whether the Tribunal was correct when it held that the re-run election was Improper, as it was the Returning Officer and not the Presiding Officers for the Polling Units who cancelled
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the election on those seven (7) Polling Units. (Grounds 13, 14, 15, 16 and 17).
5) Whether the Tribunal was right when it held that by participating in the re-run election of 27th September, 2018 the 1st and 2nd Respondents did not waive their right to complain. (Ground 18)”.
Appellant filed a Reply Brief on 18/4/2019, and when this Appeal was heard on 24/4/2019, the parties adopted their briefs and urged us, accordingly. The 3rd and 4th Respondents filed no brief, though their counsel expressed support for the Appeal.
Arguing the Appeal, learned senior Counsel, Yusuf Ali Esq., SAN (who led other senior Counsel), on issue 1, examined the correctness or otherwise of the grant of declaratory and other reliefs sought in favour of the 1st and 2nd Respondents, when according to Appellant, they failed to prove their claim, and rather called for rebuttal by the Appellant. Counsel referred to the reliefs sought by the 1st and 2nd Respondents, at pages 74 – 78 of the Records, and said they were mainly declaratory; he added that the reliefs granted by the Tribunal were also declaratory, and referred us to pages 3925 to 3927 of the Records of Appeal.
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Counsel submitted that the settled position of the law is that a party seeking declaratory relief(s) has the duty to establish his entitlement to same on the basis or strength of his case; that the obligation will not be discharged by admission or failure to call evidence by the defence, or by any perceived weakness or real weakness in the other party’s case (if any); that a Court does not make declaration, without cogent, credible and convincing evidence. He relied on Olawepo Vs Saraki (2009) All FWLR (part 498) 256 at 310 to 311; CPC vs INEC (2011) 18 NWLR (part 1279) 493 at 538; PDP vs INEC (2012) NWLR (part 1300) 538 at 561.
Counsel said that the 1st and 2nd Respondent failed to lead credible evidence to support the allegations of non-compliance in respect of which the Tribunal found for them, and in accordance with the standard of proof prescribed by law; that the Tribunal was therefore wrong to grant the reliefs as shown on pages 3925 – 3927. He said that on pages 3874 – 3875, the trial tribunal had identified the major species of non – compliance pleaded by the 1st Respondent as:
i) Improper accreditation of voters – Non – recording of
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columns in the result sheet to document accreditation and accounting.
ii. Over voting ? Recording of valid votes in excess of number of accredited voters in FORM EC8A.
iii) Deliberately voiding the valid votes of petitioners by additional thumb printing of their valid ballot papers.
Counsel said that the Tribunal found in very clear terms that 1st and 2nd Respondents failed to prove the allegation of deliberate voiding of their valid votes by adding additional thumb printing of ballot papers, and held in respect of this allegation that it was abandoned and accordingly discountenanced it (page 3876 of the Records). He said the tribunal also considered the allegation of over voting and came to the conclusion that it was not proved as required by law, as there was no evidence from the witnesses of the Petitioners showing where votes were counted before being recorded; and that there was no over voting – page 3877 of the Records. On the allegation of lack of accreditation, Counsel said the Tribunal found that there was accreditation (pages 3877 – 3878 of the Records). Thus, that all the above stated allegations were held unproved.<br< p=””
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Counsel said the Tribunal also considered the allegation of non-compliance with the Electoral Act and Guideline regulating the conduct of the election on account of failure to record the column of the result sheet designed to document the accreditation and ballot accounting made in paragraphs 45 – 77 of the petition; that the Tribunal reviewed the contending arguments of the parties on the allegation (pages 3889 – 3893 of the Records) and after considering the content of the INEC Manual and Guidelines (Exhibit p.615), came to the conclusion that it was mandatory for those eight columns to be filled in the result sheet as they are necessary for any serious effort at proving several malpractices, including over voting and ballot accounting (page 3896 of the Records); that the Tribunal thereafter held that the non-filing of the columns was material and constituted substantial non-compliance of the law on account of which it nullified the election in the identified seventeen (17) polling units. That, counsel said, was notwithstanding the Tribunals earlier finding that voters register was the major material requirement to proving over- voting, and express
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finding that over voting was not proved. Counsel said, this, to say the least, underscores the fallacy, inherent in its conclusion that the columns were necessary to prove over voting. As a matter of fact, Counsel said, the principal reason adduced by the Tribunal for giving the eight columns on the FORM EC8A the undeserved attention it gave to it centered round its view that it, was necessary to ascertain over – voting or otherwise.
Counsel said the Tribunal was in manifest error in treating failure to complete the eight columns on FORM EC8A as a substantial non-compliance and to further treat it as a reason to nullify election in the above stated polling Units; he said that from the decision of the Tribunal, it was clear that the requirements of completing the eight columns is provided for only in the manual for Election officials (Exhibit P.61 5) at page 50 thereof and not in the substantive law; that it is important to emphasize that the said Manual does not provide the sanction of cancellation of results as a consequence of non – filling of FORM EC8A; that the implication is that is does not intend to make failure to file those columns to have
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the sanction of nullification of the result of the Polling Units, where there was omission to fill the eight columns. Counsel submitted that by imposing the sanction of cancellation of the results of the elections of the units the Tribunal was reading into the Manual, things that are not contained therein. He relied on the case of Dabup Vs Kolo (1993) 9 NWLR (part 317) 254 and 285, on the interpretation of a law or a subsidiary legislation, that the Court must limit itself to what is stated in the law and not concern itself with what the law ought to be. He also referred toAdisa Vs Oyinwola (2000) 10 NWLR (part 674) 116 at 202; Adefemi vs Abegunde (2004) 15 NWLR (part 893) 126.
Counsel observed that the same Manual for election officials, in instances where it had considered non-compliance grievous enough to warrant cancellation of results, had prescribed the nullification in unambiguous terms; that in such cases it had prescribed nullification of election at polling units for such non-compliance – like in page 51, where the Manual itself prescribes declaration of election in a polling unit as null and void (cancellation) where over voting had occurred.
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He said there is no such requirement for failure to fill in the eight columns of Form EC8A.
Counsel further submitted that in granting the relief, cancelling the results of the 7 polling units, the Tribunal did not consider the totality of the materials at its disposal. For instance, that on the pink copy of Form EC8A, tendered by PW47 concerning Polling Unit 008, Ward 05 of two Local Government, it is clear from the face of that document, that the eight columns of that Exhibit were filled as the witness, in fact read out figures from the entries, under cross examination; he said that even though some of the witnesses merely adverted to the non-filling of the columns, none of them gave evidence as to how the non-filling of the columns affected the outcome of the election in their respective polling units; Counsel said that they, in fact, had no quarrels, qualms or complaints with the number of votes recorded for the 1st and 2nd Respondents in their respective polling units. Thus, he said the complaints of the 1st and 2nd Respondents therefore were lame, cosmetic and of no moment.
?Counsel said the law is now settled beyond peradventure, that a party who
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alleges noncompliance with the provisions of the Electoral laws, has not only the bounden duty to prove the non-compliance alleged, but also show the substantial adverse effect of such non-compliance on the outcome of the election; that this sacrosanct position of law has been given judicial approval by Courts in plethora of cases over the years. He relied on Buhari vs INEC (2008) 19 NWLR (part 1120) 246; Yusuf vs Obasanjo (2005) 18 NWLR (part 956) 96; Ogu vs Ekweremadu (2006) NWLR (part 961) 255 and Eze vs Okoloagu (2010) 3 NWLR (part 1180) 183. He added that the 1st and 2nd Respondents had a duty not only to establish the allegation of non-filing of the said columns on the Form EC8A, but to also prove that the omission had affected the conduct of the election and influenced the results from the polling units in issue in a substantial manner. He said that the clear position is this case, from the evidence on record, especially 1st and 2nd Respondents witnesses to answer under cross examination, is that the non-filling of the columns had not affected the conduct of the election, nor its results. He relied on Section 1 39(1) of the Electoral Act, to say that the
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legal duty which must be discharged by the Petitioners, before their prayers could be granted, was not satisfied that the non-compliance must substantially affect the outcome of the election. He relied on Yusuf Vs Obasanjo (2005) 18 NWLR (part 956) 96; Ogu Vs Ekweremadu (2006) 1 NWLR (part 961) 255; Eze Vs Okoloagu (2010) 3 NWLR (part 1180) 183.
In this case, Counsel said the 1st and 2nd Respondents witnesses, who claimed to have observed that the electoral Forms accreditation and accounting columns were not filled clearly failed to adduce evidence concerning the impact of the alleged non-compliance on the outcome of the election. He referred to the evidence of PW74 and PW77 and said they were hearsay and unhelpful; that it was wrong for the Tribunal to nullify the election, in the circumstance. He relied on Audu Vs INEC (NO. 2) (2010) 13 NWLR (part 1212) 456 at 519; Doma vs INEC (2012) 13 NWLR (part 1317) 297. He also cited Adeyeye vs Oduoye (2010) LPELR – 3263 CA, to say that it is not enough to merely catalogue instances of malpractices and breaches of the Electoral Act, without adding up or tallying the number of votes involves and their impact on
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the overall results of the election against his interest. He added that the Tribunal was wrong and without basis to have held that the non-recording was deliberate and tailored towards achieving an unwholesome results; he said that there was no evidence it was so designed, especially as that view by the Tribunal bordered on criminal allegation, which needed to be proved beyond reasonable doubt. Counsel urged us to verrule the Tribunal on the issue and relied on the case of Nwobodo Vs Onoh (1984) 1 SCNLR at 32 and ACE vs Oba (1993) 7 NWLR (part 304) 173 at 181 and BCC Plc vs Sky Insp. Nig. (2002) 17 NWLR (part 795) 86; pan vs Oje (1997) 11 NWLR (part 530) 625, to say that the Court does not act on speculation and guess work.
Counsel also submitted that the trial Tribunal was wrong to hold that the State Returning officer was the person who cancelled the results in the 7 Polling Units and that he lacked the power to do so, consequent upon which the Tribunal set aside the cancellation of the said election results of 22/9/2018 in respect of the 7 polling units, and went on to hold that the re-run of the 27/9/2018, predicated on the cancelled election
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results in the 7 polling units, cannot stand being a product of illegality. Counsel said the 1st and 2nd Respondents did not make out any case to justify that decision of the Tribunal.
Counsel said that the 1st and 2nd Respondents did not call credible evidence on the voting in the 7 polling units and that the evidence of PW74 on the point was hear-say as he was not in any of the concerned polling units, not being polling agents at the said polling units. He relied against on Buhari Vs INEC (supra); Adewale vs Olaifa (2012) 17 NWLR (part 1330) 478; Buhari & Anor vs Obasanjo & Ors (2005) 13 NWLR (part 941) at 315. Thus, he said, Appellant and the other Respondents did not have any duty to assist the Petitioners to prove their case, and so Appellant cannot be penalized for not calling evidence at the trial or to assist the Petitioners to prove their case. He relied on PDP Vs INEC (supra) at 561; Imana vs Akpabio (2008) 17 NWLR (part 225 at 303.
On the re-run election of 27/9/2018, following the inconclusive election of 22/9/2018, Counsel said the same was legal and justifiable; that the petitioners were unable to prove that the elections in the 7
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polling units were held or conducted, nor illegally cancelled as held by the majority decision of the Tribunal Counsel harped on the power of the State Returning Officer to declare an election, inconclusive and to make an order for supplementary election in such circumstance. He relied on Faleke vs INEC (2016) 9 NCNJ 89; (2016) 18 NWLR (part 1543) 61. Counsel said the Tribunal was therefore wrong in describing the re-run or supplementary election as illegal, considering the reason given for the re-run, that the margin of difference between the highest scorer and the runner-up, was too narrow, compared with the registered voters in the 7 polling units elections were cancelled. He relied again on Faleke Vs INEC (supra), and said that the decision of the Tribunal was perverse.
Counsel also faulted the order of the Tribunal, declaring 1st Respondent as the winner of the Election based on its arithmetical calculations upon the findings that the allegation on non-compliance made by petitioners had been proved. Counsel said that order of return of the Petitioners was against the provisions of the 140 (2) of the Electoral Act; that the Electoral Act has not given the
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Tribunal the power to return the Petitioner as winner; thus the order was ultra vires, illegal, perverse and reached per incuram. He relied on CPC Vs INEC (2011) 18 NWLR (part 1279) 493 at 554.
On issue 2, Counsel said the Tribunal was wrong to come to conclusion that the Petitioners had rebutted the presumption of law which enurred in favour of the Electoral documents tendered at the trial after the same Tribunal had held that the documents were dumped on the Tribunal and that there was no credible evidence linking the exhibits to any aspects of the case of the Petitioners. He relied on Section 168 of the Evidence Act, 2011, on the presumption of regularity of judicial or official act shown to have been done in a manner substantially regular, that it is presumed that formal requisite for its validity were complied with. Thus, Counsel said every document prepared by the Appellant (INEC) or emanating from it, enjoyed that presumption of regularity. He referred to the Forms EC8As as certified by Appellant, compared with the pink copies of same, tendered by witnesses and said that for the presumption of regularity to be rebutted by petitioners, they had
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heavy burden to lead cogent, credible evidence to dislodge that presumption. He relied on Section 137 (1) of the Evidence Act, 2011 and the case of Hashidu vs Goje (2003) 15 NWLR (part 843) 352 at 387; CPC vs INEC (2012) All FWLR (part 617) 605 at 639; Buhari vs Obasanjo (2005) 2 NWLR (part 910) 241.
Counsel said the petitioners failed woefully, to rebut the said presumption; that they merely dumped the documents (Exhibits) on the Tribunal, without oral evidence to link the documents to any aspect of their case; that documents tendered, without tying same to evidence, amounts to dumping the said document on the Court, and it does not matter whether it is CTC or original of a private document is dumped on the Court. He relied on Okereke Vs Umahi & Ors (2016) LPELR – 40035 SC. ACN vs Lamido & Ors (2012) LPELR – 782 SC. Counsel said that the Petitioners had failed to demonstrate how the disparity they complained about between the Certified True Copies (CTC) of the Form EC8As and the pink copies they tendered substantially affected the election conducted by Appellant and that the same enurred to their benefit/advantage. He relied on
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Mammud Aliyu Shinkafi Anor vs Abdulazeez Abubakar Yari & Ors (2016) LPELR 26050 SC. He added that the purport of tendering the documents was not also stated by the Petitioners. He said that one who alleges over voting is bound to tender the voters register, statements of result in the appropriate forms, which would show the number of accredited voters and number of actual votes, relate each of the documents to the specific area of their case in respect of which the documents are tendered and show that the figure representing the over-voting, if removed would result in the victory of the petitioners. He relied on Maku Anor vs Al-Makura & Ors (2015) LPELR 41814 CA; Shinkafi & Anor Vs Yari & ors (supra).
Counsel said the Petitioners failed to satisfy the above conditions/requirements; that mere tendering of CTC of Form EC8A as done by Petitioners, without demonstrating how the documents assisted their case, cannot be a proof of discharge of the onus of rebutting the presumption of regularity of the document, contrary to what the Tribunal held on page 3874 of the Records, and because Appellant believed the 1st and 2nd Respondents (petitioners) did not
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rebut that presumption of regularity. He said Appellant had no cause or duty to call evidence at the trial, since the duty was on the petitioners to prove their assertion on the strength of their Case, not on the weakness of the defence, their claims being declaratory in nature. He relied on Martins Aza & Anor Vs Hon. Alphonsus Avine Agbom & Ors (2015) LPELR – 40484 CA; Abubakar vs Yar’Adua (supra); Bowale & Anor Vs Adekoya & Ors (2015) LPELR 41815 CA; Okeje VS Okeje (2014) NWLR (part 1418) 284.
On issue 3, whether the Tribunal was right to hold that the failure to fill some columns in Form EC8As was fatal and amounted to act of non-compliance that adversely affected the result of the 17 polling units and thereby deducting the valid votes scored by the parties, Counsel answered in the negative, saying the finding was reached per in curium; that there was no credible or cogent admissible evidence to support the finding, and the tribunal misconstrued the provisions of the Manual for Electoral Official and the Guidelines. Counsel emphasized that the only basis for which the tribunal upheld the existence of noncompliance was the failure of
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the presiding officers to fill out some columns in Form EC8A, basing its decision on the Provision of the Manual for Election Officials. He argued again that the Manual did not provide any sanction, penalty or consequence for failure to fill the Form as complained about or for such infraction, if proved. He further argued that the columns of the said Forms were actually out in the CTC copies tendered by the Petitioners at the Trial, but, curiously, in the majority decision, the Tribunal concluded that the failure to fill the Forms was a deliberate act of Appellant to manipulate in favour of declaring the election of 22/9/18 inconclusive.
Counsel said that decision was reached per incurian as the Tribunal forgot to take into consideration previous decisions on similar situation to which doctrine of stare decisis applied. He relied on the case of Onyekweli Vs INEC (2009) ALL FWLR (Pt.490) 738; Makun vs FUT Minna (2011) ALL FWLR (Pt.594) 1 at 26. He argued that non-compliance which is not substantial, or even if substantial, but have no substantial effect on the outcome (results) of the election, cannot be the basis for invalidation of election result. He
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relied on Hon. Okoto Foster Bruce Vs Mr. Ebiekeme Frank Ere & Ors (2004) LPELR – 7378 CA; Buhari vs INEC (2008) LPELR – 814 SC on substantial non-compliance.
Counsel said the majority decision of the Tribunal also ascribed criminality to the non-filling of the result sheets in the 23 polling Units where the allegation was made on the ground that the forms were filled outside the Polling Units and that it appeared in the CTC and not in the Pink copies. He argued that since that allegation bordered on fraud, it needed to be proved beyond reasonable doubt. He relied on Dantiye Vs Kanya (2008) LPELR – 4021 CA; Ayogu vs Nnamani (2006) 8 NWLR (Pt.98J) 10-6; Nwobodo vs Onoh (1984) SC at 118.
Counsel, again, said the Tribunal placed premium on the Manual for Election Officials in deciding the matter, but that the place of the Manual has been settled by Courts and it is within the Competence of the Appellant to make the Manual, pursuant to Section 152 of the Electoral Act. He said that while it is important for presiding officers to columns in Form EC8A, failure to do so does not attract any consequence; that to compound their problems, the petitioners
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complaints, with respect to the columns in the CTC of Form EC8As in the 23 polling Units, was that they were ‘doctored’, ‘mutilated’ and ‘altered’ but these grievous criminal allegations, which had taken the infractions away from the realm of non-compliance to allegation of crime, were not proved as required by criminal procedure ? beyond reasonable doubt. Again, he argued that the said non-compliance was not demonstrated to have been proved to be substantial and to have substantially affected the election. Counsel relied on the minority decision of the Chairman of the Tribunal on the point (pages 3948 – 3949 of the Records), especially as Counsel said the Tribunal had earlier held that the criminal allegations were not proved beyond reasonable doubt (Page 3898 of the Records). He repeated his arguments under Issue 2 as to what to be tendered and done by Petitioner to establish over voting and the effect of same, and said the conclusion of the Tribunal decision on page 3898 of the Records was flawed, as there was no evidence to justify it. He relied on Oniah Vs Onyia (1989) NWLR (Pt.99) 514; Ojo-osagie vs Adonri (1994) 6 NWLR (Pt.394) 131;
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Suberu vs The State (2010) LPELR ? 312(SC).
Counsel again said that the conclusion by the Tribunal on page 3895 of the Records, that Appellant failed to comply with the regulation in the Manual with respect to filling the columns of the EC8As in the 23 Polling Units and using same as basis for deducting votes of the parties was wrong; that the use of the word shall in the Manual did not connote mandatoriness, as there was no consequence attached to non-filling of the columns. He relied the case of Ntewo Vs University of Calabar Teaching Hospital (2013) LPELR – 20332 CA; Wike vs Peterside & Ors (2015) LPELR – 25724 SC.
On issue 4, whether the Tribunal was right to declare the Re-run Election of 27/9/18 illegal on the ground it was the State Returning Officer that cancelled the results in the 7 polling Units, that Appellant had no power to order the rerun, and that the burden of proving that the cancellation and rerun were lawful on the Appellant, Counsel answered in the negative. Counsel faulted the decision of the Tribunal on page 3915 of the Records to the effect that the State Returning Officer who cancelled the election in 7 Polling Units, during the election of
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22/9/18, had no power to do so; that the cancellation was unlawful and ultra vires, and so it followed that the Re-run election built on the said unlawful cancellation was a product of illegality and could not stand.
Counsel said the majority decision misconstrued and misconceived and/or misapplied the positions of the law and relevant judicial authorities in this regard; that the INEC Guidelines and Regulations Manual rooted in Section 153 of the Electoral Act, 2010 (as amended) gave both the presiding officers and State Returning Officer the powers and obligation to act appropriately at different stages of the election, in so far as conditions listed in each of the said provisions are identified at the different stages of the electoral process. He said that it would be turning the law on its head, to state that the presiding Officer of a polling unit should be the one to take over the duty of confirming the completion or otherwise of election at the collation centre and vice versa; thus, the responsibility of each officer relates to/depends on the stage of the election.
?Counsel said the Tribunal wrongly relied on the case of
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Yar’Adua & Ors vs Yandoma & Ors (2014) LPELR – 24217 SC, and inIkpeazu vs Otti (2016) LPELR – 40055 SC, which he said were distinguishable from the facts of this case. He said that the position of the Tribunal runs foul and contrary to the extant provisions of the law, the Electoral Act, and the Guidelines and Manual for Election provided, especially as the said authorities so relied on by the Tribunal are distinguishable and not applicable to the present petition. He relied on paragraph 3.11, steps 1 – 16, pages 81 – 82 of the Manual for Election Officials 2018 (Exhibit P615) in conjunction with paragraph 44, pages 21 – 23 of the INEC Approved Guidelines and Regulations (Exhibit R112), saying that a joint reading of the provisions leaves no one in doubt, especially steps 5 and 14 thereof (INEC Manual), Paragraph 44(n) of INEC Guidelines and Regulation, that the State Returning Officer is empowered to declare Election inconclusive:
“Where the margin of win between the two leading candidates is not in excess of the total number of the registered voters of the polling unit(s) where elections were cancelled or not held, decline to make a return until another
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poll has taken place in the affected polling unit(s) and the result incorporated into a new Form EC8D and subsequently recorded into Forms EC8E for declaration and return.”
Counsel said that Tribunal had misconstrued the above provisions and so reached wrong conclusion, that the State Returning Officer lacked power to act as it did. He adopted the various submissions made by him in the previous issues on onus of proof and failure of and 2nd Respondents to discharge the onus of placed on them. He re-iterated that since the Petitioners did not tender the results of the 7 Units, where they claimed elections were cancelled, coupled with their failure to tender Form EC8 40G or other electoral documents to show that elections actually held in the said 7 Polling Units, then the decision of the Tribunal as to who had power to cancel the elections in the 7 Polling Units, was at best academic, and since Courts do not involve themselves in academic issues, the effort of the tribunal was brutum fulmen in the circumstances. He relied on Coker Vs Adetayo (1992) 6 NWLR (Pt.249) 612 at 625; Abubakri & ors vs Smith & ors (1973) ANLR 634; Elufioye & ors vs
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Halilu & Ors (1993) LPELR- 1 120 SC.
Counsel added that the Tribunal wrongly attributed the reason for its decision to purported admission by Appellant on the facts of declaration of cancellation of results and order of re-run by the Appellant in their pleadings, which according to them translated into the Petitioners having discharged the onus of proof in this regards, shifting the onus on the Appellant. Counsel said the onus of proof did not shift as the Petitioners had the duty to prove their claim on the strength of their case, on preponderance of evidence, before the burden could shift to defence to rebut. He relied on CPC Vs INEC (201 1) LPELR – 8257 (SC) 48; Ogboru vs Okowa (2016) NWLR (Pt. 1522) 91.
Counsel said it was wrong for the Tribunal to say that Appellant having admitted in their pleadings and failing to cross examine PW74, made the petitioners to satisfy the burden of proof, that it was the State Returning Officer that cancelled the election in the 7 Polling Units and holding further that burden had successfully shifted on the Appellant to justify the cancellation (Pages 3907 – 3908 of the Records).
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Counsel relied on Okefi vs Ogu (1996) 2 NWLR (Pt.432) 603 at 617.
Counsel further argued that the evidence of PW74 was hearsay as was earlier held by the Tribunal and wondered how/when the evidence of the same PW74 matured to be one to be relied on! He said that evidence of PW74 was supposed to be adopted in line with paragraph 41 (3) of the 1st Schedule to the Electoral Act, 2010. Counsel preferred the reasoning/findings of the minority judgment on the issue.
Counsel said that for Petitioners to prove that the said duty of cancelling the Polls in the 7 Units by State Returning Officer arbitrarily, instead of the presiding Officers of the Units, they (Petitioners) were expected to tender before the Tribunal Pink copies of the results, which were referred to as counter parts original of the results which was prima facie evidence of the actual conduct of the election in those Polling Units which could have placed the duty of making the necessary declaration on the Presiding Officer as against the State Returning Officer; he said that the Petitioners, through PW74, led the Tribunal into believing that they had in their possession a purported CTC of press statement or transcript
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of Statement of the Appellant issued on 23/9/18, which hitherto supported their claims that the elections were actually conducted in the 7 Polling Units, but were arbitrarily cancelled by the State Returning Officer; he said that the Petitioners failed, abysmally, to lead evidence on paragraph 1 of their pleadings, where the press release was pleaded. He said that amounted to withholding evidence and urged us to presume Section 167 (d) of the Evidence Act, 2011 and the case of Kesena Vs the State (2017) LPELR – 42458. Also, he said the 7 presiding Officers could have been subpoenaed to come and testify that the elections were validly conducted but unlawfully cancelled by the State Returning Officer, but the Petitioners failed to do so. Thus, the burden of proof still resided on the Petitioners and never shifted the Appellant. He relied on Bello Vs Eweka (1981) LPELR – SC 90/1979.
He (Counsel) therefore submitted that the act of the State Returning Officer declaring the elections of 22/9/19 inconclusive was valid and in line with the law; that where the law confers duty/obligation on an entity/person and makes it a statutory duty/obligation, the exercise
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of that duty cannot be undermined or circumvented by perceptions of persons, admissions of witnesses or parties against the said position, and any other evidence to the contrary. Thus, the State Returning Officer was performing a statutory duty when he declared the election inconclusive. He relied on Ikechukwu Vs Nwoye (2015) 3 NWLR (Pt.1446) 367 at 402; Ibrahim vs Fulani (2010) 17 NWLR (Pt. 1222) at 241 on interpretation of statute, that contains lucid, precise and unambiguous provisions. See also EB. Co. Ltd Vs Amobi (2010) 4 NWLR (Pt. 1184) 381; Buhari vs Obasanjo (2005) 13 NWLR (Pt.941) 66.
On when a Returning Officer can declare election inconclusive, Counsel relied again on the Manual and Guidelines Paragraphs 3.11 and 44(n) and on the case of Faleke Vs INEC (supra). He said that the case of Ikpeazu Vs Otti (supra) was not applicable to this case. Rather he founded on Wike Vs Peterside (supra) to say that result declared by INEC enjoys presumption of regularity and the onus is on the Petitioner to prove the contrary. Also, Eromosele Vs FRN (2017) 1 NWLR (Pt.1545) 108.
?On Issue 5, whether the Tribunal was right to hold that the Petitioners
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were not caught by the principle of estoppel, having taken part in the Re-run election, Counsel answered in the negative. Counsel relied on his arguments under Issue 4 on what transpired, leading to the declaration of the election of 22/9/18 inconclusive.
He relied on the case of Iga Vs Amakiri (1976) LPELR -1439 SC on the principle of the doctrine of estoppel and submitted that the Petitioners, having agreed to surrender to the authority of the Appellant and participated in the Re-run election of 22/9/18 had waived their right to complain about the legality of the Re-run election; that their conduct of participating in the Re-run rather merely activated the provisions of Section 137 (1) and 138 (1) of the Electoral Act, 2010 (as amended), which clothed them with right to challenge the outcome of the said election. He relied on the case of Emerhor Vs Okowa (2016) 11 NWLR (Pt. 1522).
Counsel said the Tribunal misdirected itself on the application and implication of the doctrine of estoppel, having rightly referred to the case of Iga Vs Amakiri (supra), when it held that the Petitioners were not estopped from challenging the Re-run. He added that the
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Petitioners (1st and 2nd Respondents) could not eat their cake and still have it. He relied on the case of Sylva Vs INEC (2016) 11 SC 52.
Counsel urged us to resolve the Issues for the Appellant and allow the appeal.
Responding, Learned Senior Counsel for 1st and 2nd Respondents, Dr. Onyechi lkpeazu SAN (leading a team of other Senior/other Counsel), on Issue 1, harped on the fact that election petition is sui generis (ANPP Vs INEC (2010) 13 NWLR (Pt.1212) 549 at 604; Buhari Vs Yusuf (2003) 14 NWLR (Pt.841). He said that, generally, in civil matters, facts admitted in pleadings mean that there is no issue in dispute between the parties on such agreed matters and evidence on admitted fact becomes irrelevant and unnecessary. He relied onJames Vs Mid-Motors (Nig.) Co. Ltd (1978) 11 -12 SC 25; Barau & Ors Vs Consolidated Tin Mines Ltd & Ors (2019) LPELR-46806 CA.
Counsel referred us to paragraphs 16, 21(b) and 24 of the Petition (pages 11 and 15 of the Records of Appeal) and to Petition by Appellant (Pages 631 – 632 of the Records), where Appellant reacted to the said paragraphs of the petition. Counsel said Appellant never disputed or
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controverted the 1st and 2nd Respondents’ assertion that election were held and results cancelled at the said listed polling units. Rather, that Appellant took a position that the election results at the said units were rightly cancelled by its Returning Officer. Counsel said, worse for Appellant, it failed to call any witness in support of its pleadings at the Tribunal. Counsel said it has long been resolved, and restated over and over again, that where a party fails to call any evidence in support of its case, or neglected to lead rebuttal evidence of the case of the opposite party, a Tribunal or Court of law is entitled to resolve matters in controversy against that party, unless there are valid reasons to the contrary. He relied on FCDA Vs Alh. Musa Naibi (1990) 5 SCNJ 186 at 195 -196. Counsel added that pleadings do not constitute evidence; that Appellant’s pleadings, having not been alluded to in evidence before the Tribunal, is deemed to have been abandoned. He relied on Francis Osane Eseigbe Vs Friday Agholor & Anor. (1993) 13 SCNJ 82; Honika Saw-mill Nig. Ltd Vs Mary Okojie Hoff (1994) 2 SCNJ 86 at 98; Alh. Muhammadu Haigari Dihgyadi & Anor
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Vs Aliyu Magatakarda Wamako & Ors (2008) LPELR-4041, which Counsel said are on all fours with the present petition; that INEC therein failed to call any witness in support of its reply, the Court of Appeal held inter alia that the Tribunal was right in treating the Reply as having been abandoned.
Counsel said that the law was settled, that where a party tenders documents in support of his case, without calling admissible oral evidence by the person who can explain their purport and how useful the documents could be, they cannot be any assistance to the Court. See Egba Vs Appah (2005) 10 NWLR (Pt.934) 464; Alao Vs Akano (2005) 11 NWLR (Pt.935) 160 at 179; and Dingyadi & Anor Vs Wamako & Ors (supra) where it was held:
“There ceased to be a contest between the appellants and the 3rd-43rd respondents having admitted the claims of the Appellants as regards the conduct of the elections. This is by operation of the law. If the appellants are required to prove the averments relating to the allegations against the conduct of the election, by the 3rd to 43rd respondents, only a minimal proof is required.”
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Counsel said the 1st and 2nd Respondents have not only relied on the admission, but went further to prove their case; that the entire testimony of PW74, at pages 3612 -3627 of the Records, was direct and unequivocal in his evidence in chief on the points that elections were held and results of the listed 7 Polling Units cancelled by the Returning Officer; he said that a perusal of the totality of the evidence elicited from PW74, during cross examination by Counsel for Appellant, 3rd and 4th Respondents, would reveal that none of them deemed it necessary to challenge or impugn the evidence of PW74 during cross examination.
Counsel submitted that the submission of Counsel, no matter how brilliantly written and argued can never usurp the place of evidence in a matter.(Archibong Vs Edak (2006) 7 NWLR (Pt.980) 455 at 502; Aro Vs Aro (2000) 3 NWLR (Pt.649) 433 at 457; Obasuyi Vs Business Ventures Ltd (2000) 5 NWLR (Pt.658) 668 at 690; UBA Plc Vs ACB Nig. Ltd (2005)12 NWLR (Pt.939) 232 at 277; lshola Vs Ajiboye (1998) 1 NWLR (Pt.532) 71; Counsel deprecated the attempt by the Appellant’s Counsel to use his Brief of argument to lead evidence on the allegations that were not defended at the
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trial, and said that was futile, and arrant babble, devoid of focality.
He urged us to expunge such argument of Appellant in the brief, as it relates to evidence.
He said that a party must be consistent in stating his case, and that the law is trite that parties are bound by their pleadings and not allowed to approbate and reprobate, and relied on many decided authorities includingUde Vs Nwara (1993) 2 NWLR (Pt.278) 638 at 662; Oredoyin Vs Arowolo (1989) 4 NWLR (Pt.114) 172 at 208; Balonwu Vs Ikpeazu (2005) 13 NWLR (Pt.942) 479 at 526; Adeogun Vs Fashogbon (2011) 8 NWLR (Pt.1258) 427 at 453; Ejigini Vs Ezenwa & Ors (2003) LPELR -10329 CA; Ajide Vs Kelani (1985)3 NWLR (Pt.12) 248 at 269. He submitted that the case of PDP Vs INEC (2012) 4 NWLR (Pt.1300) 538 is in favour of the 1st and 2nd respondents; that they had proved their case at the Tribunal as granted by the Tribunal. Counsel said contrary to the submission of Appellant, not all the reliefs sought were declaratory. He referred us to Reliefs VII, XIII, XIV, and XVII where they claimed:
VII.”An order of this Honourable Tribunal nullifying the Certificate of Return issued to the 2nd
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Respondent by the 1st Respondent.
XIII. An order nullifying the result of the rerun election into the office of the governor of Osun State conducted on the rerun election of 27th September, 2018 for being null, void, unlawful, ultra vires and of no effect whatsoever, howsoever.
XIV. An order nullifying and or cancelling all votes in all Polling Units where the Petitioners have established over-voting and non-accreditation during the Osun State Governorship Election of 22nd day of September, 2018.
XVII An Order returning your petitioners as the winner of the election to the office of Governor of Osun State held on the 22nd of September, 2018 and the 1st Petitioner Senator Ademola Nurudeen Adeleke as the duly elected Governor of Osun State.”
Counsel said even the alternative prayer, XIX, was not a declaratory relief:
An order directing the 1st Respondent to issue your 1st petitioner, Senator Ademola Nurudeen Adeleke with the Certificate of Return forthwith.” (Pages 74 – 78 of the Records)
He said that Appellant has isolated paragraph 102 (I – XVII) of the Petition and run with it on this issue, without considering other
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pleadings in the petition such as paragraph 102 (ii), where they (Respondents) specifically pleaded and sought relief that they won the election by a total of 254,698 votes (far more than the 253,452 or 253,777 votes awarded them by the Tribunal). Counsel urged us to discountenance the submissions by Appellant and consider paragraph 102 (ii) of the Petition, where 1st and 2nd Respondents specifically pleaded and prayed that they be declared winners of the election with 254,698 votes, and to find that the Tribunal findings that the 1st and 2nd Respondents scored 253,452 or 253,777 votes did not amount to giving them more that what they asked for, as they had actually asked for a declaration that they scored 254,698 votes. Counsel relied on the case of Okochi Vs Animkwoi (2003) 18 NWLR (Pt.851)1 at 24, where the Supreme Court held that:
“In dealing with pleadings, a Court must read all the paragraphs, together, to get a flowing story of the parties and not a few paragraphs in isolation. It is the totality of the pleadings, whether it is the statement of claim or the statement of defence, that state of the case of the party and it will be injustice to invoke
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only a few paragraphs to come to the conclusion.”
Counsel said that Appellant mischaracterized the case of 1st and 2nd Respondents; that the score of 1st and 2nd Respondents in the Form EC8D was 255,023, while the Appellant (meant to say 3rd and 4th Respondents) scored 255,505; that 1st and 2nd Respondents had contended at the Tribunal that if the votes voided by reason of (i) total votes exceeding accreditation and (ii) non-recording of accreditation, were deducted from all their votes the 1st and 2nd Respondents would end up with 246,634 votes while Appellant (meant to say 3rd and 4th Respondents) would end up with 241,335 votes; that it was 1st and 2nd Respondents’ further pleading that, by this deduction, they would win the election with a margin of 5,299 votes; that they pleaded that they would lose 5,119 votes, exceeding accreditation, while they would lose 3,270 votes to non-recording of accreditation. They also pleaded that Appellant (meant to say 3rd and 4th Respondents) would lose 8,694 votes to total votes exceeding accreditation and 5,476 votes to non-recording of accreditation (See paragraph 102 (XVIII) of the Petition (page 78 of the Records).
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Counsel said the lower Tribunal found that the 1st and 2nd Respondents did not prove their allegation. Accordingly, the Tribunal neither deducted 5,119 votes from 1st and 2nd Respondents score, nor 8,694 votes from Appellant’s (meant to say 3rd and 4th Respondents’) votes. However, the Tribunal found that the 1st and 2nd Respondents proved their claim under that head, and the Tribunal found that, out of the votes 1st and 2nd Respondents claimed, 3,270 for 1st and 2nd respondents 5,467 for the Appellant (meant to say 3rd and 4th Respondents) as being unlawful by reason of non-recording of accreditation), they were able to establish that only 2,029 were unlawful votes credited to the Appellant (meant to say 3rd and 4th Respondents) and 1,246 unlawful votes were credited to 1st and 2nd Respondents. Thus, following this finding, the Tribunal deducted these latter figures from the total votes of the parties in respect of the election of 22/9/18 and 27/9/18, and arrived at the final scores of the parties.
Thus, Counsel said the allegation/submission by Appellant that the Tribunal awarded the 1st and 2nd Respondents more votes than they asked for, is
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erroneous, legally and factually speaking; he said that what was awarded was within the prism of the reliefs sought by the 1st and 2nd Respondents. He referred us to reliefs (i) and (ii) by the 1st and 2nd Respondents and said that all that the Tribunal did was to grant those prayers. He said that Appellants’ argument would have been cogent if the 1st and 2nd Respondents did not pray for a declaration that they were the winners of the election, and the Tribunal did not go beyond the reliefs in the petition in its final orders.
Counsel recapped that, factually, the 1st and 2nd Respondents, had asked the Tribunal to deduct a total of 14,170 votes from 3rd Respondent’s votes, and 8,389 votes from their (1st and 2nd Respondents’) votes, so that they would have a lead of 5,299 votes from the final tally, but the Tribunal did not deduct the huge votes requested. Rather it deducted only 2,029 from the 3rd Respondent’s votes and 1,246 from the 1st and 2nd Respondents’ score, and that gave the 1st and 2nd Respondents a very slim lead of 1,136 votes (based on the election of 22/9/18), and 301 votes (based on the election of 27/9/18). He said that basic mathematical knowledge
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would show that these figures are far less than the 5,299 votes prayed for in the Petition by the 1st and 2nd Respondents.
Counsel said the law is settled, that Counsel while putting across the case of his client, is duty bound not to mislead or misguide the Court with submissions that, if erroneously acted upon by the Court, will precipitate a miscarriage of justice. He relied on CCB Nig. Plc Vs Okpala (1997) 8 NWLR (Pt.518) 673 at 696 – 697; Okomu Oil Palm Ltd Vs Okpame (2007) 3 NWLR (Pt.1020) 71 at 85. He said that contrary to the embarrassing submission of Counsel for Appellant in paragraph 4.14 of Appellant’s brief, PW74, Razak Ma’aruf Rabiu Adelani (male), testified under cross examination by Appellant’s Counsel, that “At column2 of Exhibit P278A nothing was recorded for number of accredited voters” (See page 3557 of the Records of Appeal). Counsel relied on the case of Momodu & Ors Vs Momoh & Anor (1991) 2 LRCN 437, where the Supreme Court said:
“It is a very serious matter and indeed sad for Counsel whose bounden and inescapable duty is to assist the Court, to appear to be intent in misleading the Court. This attitude of Counsel which
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is unethical and reprehensible calls for condemnation by the Court in no uncertain terms.”
Contrary to paragraphs 4.15, 4.16. 4.17, 4.18, 4.19, 4.20; 4.22 of the Appellant’s Brief, the 1st and 2nd Respondents repeated their position above and stated further, that both oral and documentary evidence were led to substantiate non-compliance; that neither Appellant, nor 3rd and 4th Respondents offered any rebuttal evidence; that though Appellant and 3rd and 4th Respondents cross-examined Petitioners witnesses, a calm appraisal of the evidence elicited will show that rather than ameliorate their situation, these elicited evidence emphasized the disparity between the Certified True Copies and the tendered pink copies, contrary to the dictates of due election laws and the guidelines and Manual for the election; he said that the law is trite, that where the tribunal finds that the alleged acts of non-compliance were established, the election emanating from the affected polling units will be liable to be set aside. He relied on Onuigwe Vs Emelumba (2008) 9 NWLR (Pt.1092) 571.
?Counsel further submitted that issue of non-compliance is not in the realm of criminal
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allegation, and relied on Chime Vs Onyia (2009) 2 NWLR (Pt.1124) 1 at 62:
“…Irregularity and non-compliance in any election are referred to as electoral malpractices and this could be classified into corrupt practices, irregularities, and non-compliance with Electoral Act.
Counsel said the attempt by the Appellant to cloth the manifest non-compliance with the Electoral laws in the garb of criminality was just to raise the bar and standard of proof, which, in all civil matters, is on the balance of probability. He relied on the case of Swem Vs Dzungwe & Anor (1966) NMLR 297 at 303.
Counsel asserted that 1st and 2nd Respondents had discharged the burden of proof on them in accordance with the settled principles of law but that Appellant failed to offer any evidence in rebuttal, the burden having shifted to the Appellant. He relied on Asad Vs lfeanyi (2010) ALL FWLR (Pt.517) 742; Buhari Vs Obasanjo (2005) ALL FWLR (Pt.273) 1; (2005) 13 NWLR (Pt.941) 1.
Counsel also said that the Tribunal was right when it said that the rerun election was improper as it was the Returning Officer and not presiding officers of the Polling Units, who
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cancelled the election at the respective polling units. He relied on the case of Falake Vs INEC (supra), which Appellant also relied on, saying the case rather favoured 1st and 2nd Respondents. Counsel said PW74, who was 1st and 2nd Respondents’ collation officer, was present at the collation office and witnessed when the State Collation Officer of the Appellant cancelled election of Polling Units 1 and 4, in Ward 8, Unit 3 in Ward 9 in Orolu LGA, Polling Unit 2 in Oyere II Alapata Village Ward 10 in lfe North LGA, Polling Unit 012 Adereti Ward 7 and Polling Unit 010 in Osi Ward 8, RCM Primary School, Aluti Erin Ife South LGA, polling Unit 017 in Ward 5, Osogbo LGA.
?Counsel said the case made out by 1st and 2nd Respondents at the tribunal was not challenging the power of Returning Officer to order for Rerun election, but that it was the presiding officers of the respective polling units that had power to cancel election at the polling units, not the Returning Officer. Counsel relied on INEC 2018 Manual for Election Officials (Exhibit P615) at Chapter 3, paragraph 3.2, 3.11, step 1 – 16, pages 81 – 82.
?In reaction to Appellant’s Brief, paragraphs 4.33 and
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4.34, Counsel called our attention to the fact that Section 140 (2) of the Electoral Act, 2010, as amended, which Appellant relied on had been struck down from the Electoral Act, for being null and void and inconsistent with Section 134 and 179 of the 1999 Constitution, relying on the case of Labour Party Vs INEC & Ors (Suit No.FHC/ABJ/CS/309/2011, which struck down Sections 140 (2) and 141 of the Electoral Act, 2010 and Counsel said was strengthened by the Supreme Court in the case of Wada Vs Bello (2016) 17 NWLR (Pt.1542) 433; thus:
“If a Court of competent jurisdiction, in a proceeding in which the validity vel non of a piece of legislation is in issue, strikes out the piece of legislation, then as long as that order has not been set aside by a Court that has jurisdiction to do so, that order binds all Courts, whether below or above the Court that made the order in the hierarchy of Courts. In the circumstance, Section 141 of the Electoral Act, 2010 (as amended) has ceased from the date the judgment or the Federal High Court in the case of Amaechi Vs INEC (2008) 5 NWLR (Pt. 1080) 227 to be part of Nigerian Law, since it has not been set aside by a
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Court of competent jurisdiction.”
Counsel urged us to take judicial notice of the said decision in the case ofLabour Party Vs INEC (supra) and the Wada Vs Bello case. He also relied on Rossek Vs ACB (1993) 8 NWLR (Pt.312) 382; Ilona Vs Idakwo (2003) 11 NWLR (Pt.830) 53 at 83. He added that the case of Jev Vs lyortyom & Ors (2014) 14 NWLR (Pt.1428) 575 did not set aside the Labour Party Vs INEC case. He urged us to resolve the issue against Appellant.
On Issue 2, whether the Tribunal was right in holding and coming to the conclusion that the 1st and 2nd Respondent rebutted the presumption of law inured in favour of the electoral documents tendered at the trial, Counsel answered in the affirmative. He referred us to Section 86 (3) of the Evidence Act 2011, on document executed in counterparts, that each Counterpart is original thereof and submitted that, where a number of document have all been made by one uniform process, as in the case of printing, lithography or photography, each shall be primary evidence of the contents of the rest. He relied on Daggash Vs Bulama (2004) 14 NWLR (Pt.892) 204. Thus, Counsel said the Pink copies of FORM EC8A are original
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copies under the Section 86(4) of the Evidence Act. He relied on the case of Aja Vs Odin (2011) 3 NWLR (Pt.1 242) 509 at 537-537; Nwobodo Vs Onoh (1984)15 NSCC18; Okoh Vs Igwesi (2005) ALL FWLR (Pt.264) 218.
Counsel said that contrary to the position of Appellant, 1st and 2nd Respondents called PW35, who tendered Exhibit P41 7A and identified Exhibit P417; PW36, who tendered Exhibit P422A and identified P422; PW37, who tendered Exhibit P147 and identified P147 and other PWs, who tendered specific Exhibits and identified others, and all testified in respect of non-recording of accreditation and non-filling of the top right corner of the Pink copy of Form EC8A in their respective polling units; he said that the witnesses testified that the pink copy of the said Forms EC8A were given to them immediately after the election. They also testified that the CTC of Form EC8A were doctored! Counsel said, where a number of documents have all been made by uniform process, as earlier stated, each shall be primary evidence of the content of the rests – Section 86 (3) of the Evidence Act, 2011, Daggash Vs Bulama (supra); thus, he said, where the document was filled
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and/or executed in counterparts, they should be in-tern dem (in-tandem), and any disparity on the contents of such document will impeach the credibility of same and hence no Court of law or Tribunal should rely on such a document. Counsel said it is trite that documents placed before a Court are for the purpose of examination and evaluation, and it is the duty of the judge to ensure that such documents are considered in the interest of justice. Thus the judge is expected to closely examine the documents and decide on them – Tangale Traditional Council v. Fawu(2001) 17 NWLR (pt.742)335-336, FATB Ltd v. Partnership Inv. Co. Ltd (2003) 18 NWLR (Pt.851) 35 at 74; Ayeni Vs Dada (1978) 3 SC 35; Bamgboye Vs Olarewaju (1991) 22 NSCC (Pt.1) 501. He also relied on Atikase Otito Vs Kurile Odidi (2010) LPELR -9070, to say that once a document is tendered, it should be allowed to speak for itself and it must be taken, ex-facie, for what it says. See also Awuse Vs Odili (2005) 16 NWLR (Pt.952) 416; INEC Vs Oshiomole (2008) (Pt.3) LRCN 649. He also said that documentary evidence is more reliable than oral evidence. Akinbisade Vs State (2006) 17 NWLR (Pt.984) 47; Aiki Vs Idowu (2006) 9 NWLR (Pt.984) 47.
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Counsel submitted that Form EC8A is the bedrock for collation of election results in subsequent Forms and therefore cannot be ignored by the Election Tribunal. See Kress Njikwuemeni Vs Victor Ochei (2004) 15 NWLR (Pt.895) 196 at 235; he also relied on Agbakoba Vs INEC (2008) 18 NWLR (Pt.11 19) 539; Aiki Vs Idowu (2006) 9 NWLR (Pt.984) 47 at 65 to the effect that, documentary evidence is the best evidence and oral evidence cannot be used to vary, discredit, add to or subtract from or contradict documentary evidence.
He submitted that the Form EC8A, tendered in Pink copies, were original copies, going by Section 86 (3) of the Evidence Act, 2011; that the presumption of regularity of same inured to it as well as to the CTC; that 1st and 2nd Respondents tendered both the Pink copies and the CTC of Form EC8A; but the CTC Forms contained insertions, alterations and mutilations thus the 1st and 2nd Respondents, successfully rebutted the regularity of the documents (results), in view of the non-filling of same columns in the Pink copies, but filled in the CTC, with alterations and mutilations, thereby shifting the burden on the
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Appellant to tender, present and lead evidence to justify the insertions, mutilations and inconsistencies. But Appellant failed to call such evidence; that Appellant’s Counsel rather resorted to advance evidence in his brief, to substitute the needed evidence! Counsel observed that the election was conducted by Appellant, 3rd and 4th Respondents also participating, who also had their own copies of the said Form EC8As, but failed to present any contrary copy or similar copy of Form EC8A; thus 1st and 2nd Respondents successfully rebutted the presumption of regularity inured to the CTC of Forms EC8A, tendered by the witnesses; he said that the document were serially mutilated, altered, defaced, ‘doctored’ in similar patterns, to favour the 3rd and 4th Respondents.
Thus, that 1st and 2nd Respondents led evidence at the Tribunal to prove that the 3rd Respondent was not duly elected by majority of lawful votes, as there were unlawful votes credited to parties by Appellant, which if deducted from the overall votes of the parties, the 1st Respondent would emerge with majority of lawful votes. Counsel argued that it was upon deduction of such unlawful (toxic) votes
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from the scores of the parties that 1st and 2nd Respondents were returned by the majority decision of the Tribunal. He relied on the case of lyagba Vs Sekibo (2009) 3 LRCN 645 at 655: Hope Democratic Party v. Obi (2011) LRCN 357. He also relied on Section 140 (3) of the Electoral Act 2010 (as amended), which empowers the Tribunal to declare as winner the party who scored the majority of lawful votes and satisfied the other constitutional requirements at the election. Counsel also placed reliance on Section 138 (1) (c) of the Electoral Act which prescribes what the Tribunal should do if it finds out that the Respondent was not duly elected by majority of lawful votes at the election. See also Ogboru Vs Okowa (2016) 11 NWLR (Pt.1522) 84 at 139.
Counsel noted that Appellant did not appeal against the findings of the Tribunal on over-voting and urged us to expunge Appellants arguments on the issue. He referred us to the holding of the Tribunal, when it said:
“In the final analysis and resulting all our findings, we hold that the petitioners have successfully rebutted the presumption of regularity attached to the said certified true copy of the Forms EC8A.
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In the same vein, we uphold the Pink copies as genuine and regular.” (See page 3874 of the Records of Appeal)
He urged us to resolve the Issue against Appellant.
On Issue 3, whether the Tribunal was correct when it declared invalid the result in Seventeen (17) Polling Units and held that 1st and 2nd Respondents established acts of non-compliance, which affected the election, Counsel answered in the affirmative. Counsel adopted his arguments under Issues 1 and 2 (supra). He submitted that the Tribunal duly exercised its function as demanded by Section 68 (1) of the Electoral Act, 2010, adding that it is the Tribunal not the Appellant that possess the vires to set aside result or declaration made by a Returning Officer; that this is not a matter of disenfranchising the electorate. Counsel said the cases cited by Appellant on this point failed to address the salient ground on which the decision of the Tribunal rested; that the matter indeed proceeded beyond accreditation and over voting for which the Register of voters would be required; he asserted that the Register of Voters will not be required for a finding that eight (8) Columns on Form EC8A
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were not filled; that all that is required is a perusal of the result forms, which speak for themselves and nothing more. Also, Counsel said where the result forms themselves supplied information as to number, accreditation and ancillary matters, clear observation of these Forms, which after all carry presumption of regularity can establish patent infractions, without the agency of other documents.
In other words, Counsel said, if the Register of Voters will be required, where the entries exhibit manifest inaccuracies, anomalies and mutilations, the Register of Voters can only compound rather than ameliorate the desperate situation.
Counsel cited Section 139 (1) of the Electoral Act and founded on the judicial authorities in the interpretation of same, that Tribunal can lawfully invalidate, an election by reason of non-compliance, where the petitioner establishes that:
(1) The election was not conducted in substantial compliance with the principles of the electoral Act and
(2) The non-compliance substantially affected the result of the election.
He relied on Buhari Vs Obasanjo (2005) 13 NWLR (Pt.941)1; Buhari Vs INEC (2008) 19 NWLR
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(Pt.1120) 246 and CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493.
Counsel argued and submitted in relation to the invalidate polling units, where the Tribunal held that the election was not conducted in substantial compliance with the principles of the Electoral Act, and said that there is no doubt that the overriding principle of the Electoral Act 2010, as amended, is the proper, valid and fair conduct of an election by Appellant. He relied on Section 153 of the Constitution of the Federal Republic of Nigeria and Paragraph 15 of Part 1 of the 3rd Schedule to the 1999 Constitution. He pointed out the safeguards in the Electoral Act, meant to achieve that objective, including the use of result sheets at each polling unit, which provide columns to be filled to help detect or prevent rigging such as number of accredited votes, number of ballot papers issued, and used and total number of votes cast, which must be recorded; that another safeguard is the mandatory provision that, after result sheets at the polling units are properly filled by the presiding officer, signed by him and counter signed by all candidates or their polling agents, the polling agents are
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given counterpart original copies of the results; he said that these measures were to reduce the possibility of anyone getting away with altering the actual results of the election, before or during the collation process. He relied on Section 63 of the Electoral Act.
Counsel pointed out that the above safeguards, as shown as the Tribunal, were flouted or not complied with by the Appellant, particularly, the duty to ensure that all relevant entries of the result sheet were made before the counter-part original copy of same is issued to the polling agent. He said that the proper filling of the result sheet is germane to the determination of whether the Appellant validly and properly discharged its duty to conduct a free, fair and valid election; that the duty to properly and fully fill the result sheets cannot be diminished, neither can the substantiality of the failure do so, as in the case of the 17 Polling Units, be trivialized. Counsel explained, again, that the Pink Forms EC8A in respect of the 17 Polling Units, given to agents of the 1st and 2nd Respondents, the column, for accreditation were not filled by the presiding officers. Counsel relied on
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the case of Ajadi Vs Ajibola (2004) 16 NWLR (Pt.898) 91 at 182 to say that accreditation is the sign post or hanger upon which the Court or Tribunal would determine whether there was any rigging or irregularity in the election. He also relied on Nweke Vs Ejims (1999) 11 NWLR (Pt.625) 39. He added that the Voters Register need not be produced to establish over voting, where there is no accreditation. Thus, Counsel said the Tribunal was right to hold that failure to properly fill the pink forms EC8A, with regards to the columns for accreditation was substantial non-compliance, especially as the CTC of the same Form EC8As produced from the custody of Appellant showed such column filled, having been “doctored” by the Appellant! He relied on CPC v. INEC (supra); Counsel also cited several authorities on what constituted substantial non-compliance and when the same affected the result of the election – Ajadi Vs Ajibola (supra); Fayemi vs Oni (2010) 17 NWLR (Pt. 1222) 326; CPC Vs INEC (supra); Terab Vs Lawan (1992) 3 NWLR (Pt.231) 569; Doma vs INEC (2012) 13 NWLR (Pt. 1317) 297. Counsel referred us to the holding of the majority decision of the Tribunal on page
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3902, where it founded on the decision of Onuigwe vs Emelumba (2008) LPELR – 4787 CA, to say:
“Acts which may be regarded as sufficient to substantially affect the result of an election need not necessarily be widespread non-compliance. Such acts may occur in a few places, yet their effect are so significant to the overall result of the election that it cannot be ignored. It is not the number of stations where or how widespread the non-compliance has occurred which is relevant, it is the effect of the non-compliance on the overall result of the constituency involved. See Biyu Vs Ibrahim (2006) 8 NWLR (Pt.981) 1 at 50…”
Counsel added that upon the deduction of the invalid votes in the 17 Polling Units, the result of the election was substantially affected. He urged us to uphold the decision of the Tribunal.
?On Issue 4, whether the Tribunal was correct, when it held that the re-run election was improper, as it was the Returning officer and not the presiding officers for the Polling Units, who cancelled the election of those seven (7) Polling Units, Counsel answered in the affirmative. Arguing the Issue, Counsel summarized it as follows:<br< p=””
</br<
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(1) Elections were held and cancelled at the respective 7 Polling Units
(2) This fact being admitted facts, required no further proof
(3) The Tribunal’s findings thereof remain valid and subsisting, that elections were held and cancelled in the 7 Polling Units, and the cancellation was done by the Returning Officer, not by the Presiding Officers of the Polling Units
(4) The 1st and 2nd Respondents had therefore discharged the burden placed on them in that regard.
(5) The Tribunal, therefore, properly applied the principles in the case of Doma Vs INEC (2012) 13 NWLR (Pt.1317) 297 and Ikpeazu Vs Otti (2016) 8 NWLR (Pt.1513) 38.
Counsel repeated, substantially, the submissions he earlier made under Issue one in respect of the cancellation of the election results in the seven (7) Polling Units by the State Returning Officer and the effect of that cancellation. He founded on the Election Manuals for Election Officials (Exhibit P615) at Chapter 3, paragraph 3.11 and listed the functions of the Returning Officer.
Counsel submitted that election is originated and transmitted by the presiding officer, until it gets to the final
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destination centre, where the State Collation/Returning Officer presides. He said that the Form EC40G series which the State Collation/Returning Officer is required to look at as basis of comparing the margin of win between the two leading candidates, originates from the presiding officers to the Ward collation officers. He submitted that Appellant in this appeal is between the devil and the red sea; that assuming, without conceding, that election did not hold in the 7 Polling Units, Form EC40G should have been completed by the ward collation officer and tendered in evidence. Also where election was cancelled by the presiding officer, Form EC40G still needed to be completed by him and sent to the ward collation officer and tendered in evidence; he said that without Form EC40G from the subordinates, the State Collation/Returning Officer cannot invoke the provision of paragraph 3.11, steps 5, 9 and 14 of the 2018 Manual of Election Officials (Exhibit P61 5), to decline to make a return, and/or declare a re-run election. Counsel said that the Manual (Exhibit P615) being a subsidiary legislation is meant to guide election process and it is mandatory that INEC
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Officials are bound to uphold the terms and tenor of the Manual (Exhibit P615). He relied on the case of Faleke Vs INEC (2016) 18 NWLR (Pt.1543) 61 at 157.
Counsel said that Appellant, who had the duty to justify the cancellation of the elections by producing Form EC40G series and reports from the Ward Collation Officers/Presiding Officers of the anomaly observed at the polling units, where election was not held and/or cancelled, or lead any evidence in that regard, failed to do so. He relied on Jitte & Anor Vs Okpulor (2015) 72 SC (Pt.11) 77 on the principle that facts admitted are no longer issues between the parties. Oseni Vs Bajulu (2010) ALL FWLR (Pt.51 1) 813; Sure Power Nig. Ltd & Anor Vs FBN Plc (2018) LPELR – 44161 CA; Akaninwo Vs Nsirim (2008) LPELR – 321 SC.
Counsel observed that the specific findings of the Tribunal on pages 3912 -3913 of the Records, that there was no evidence (Form EC 40 G) to show report from the presiding officers of the 7 Polling Units to the Ward Collation Officers and from the Ward collation officers to the State Returning Officer, showing that election did not hold and/or results were cancelled in those
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polling units, to serve as basis for the decision of the State Returning Officer. Thus, “the State Collation/Returning Officer cannot invoke the provision of paragraph 3.11 steps 5, 9 and 14 of the Manual (Exhibit P615) to decline to make return and/or order a re-run election.”
Counsel said the said findings. having not been appealed, remain binding and conclusive Darma & Ors Vs Mustapha (2014) LPELR -23734 (CA); Obi Vs Ugbor (2018) LPELR -44420 CA. Counsel also relied on the case of Pharma-Deko Plc Vs FDC Ltd (2015) 10 NWLR (Pt. 1467) 225, to say that, where the law provides a particular way of doing something every other method is excluded; that since the Manual (Exhibit P615) has spelt out how the Returning Officer could declare a return or re-run election, every other resort was excluded. CCB Nig. Plc Vs A.G. Anambra State (1992) 8 NWLR (Pt.261) 528; Faleke Vs INEC (supra).
?Thus, 1st and 2nd Respondents’ Counsel said, they had discharged the burden of proof required of them for the Tribunal to declare that the Returning Officer’s declaration of re-run election was wrong and unlawful, basing it on the unlawful cancellation of the election in
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the 7 Units. Counsel relied again on the case of Doma Vs INEC (supra) and lkpeazu Vs Otti (supra) to say that the Returning Officer lacked power to cancel an election or result of election and that it is the presiding officer that can do it at the respective polling unit where there is valid reason to do so, and reflect so on Form EC40C.
On Issue 5, whether the Tribunal was right when it held that, by participating in the Re-run election of 27/9/18, the 1st and 2nd Respondents did not waive their right to complain, Counsel answered in the affirmative. He adopted the argument in the foregoing paragraphs. Counsel said the Tribunal exhibited great wisdom and appreciation of the predicament of a petitioner, compelled to proceed through a re-run, when it held:
“… It was not the Petitioners that made the 1st Respondent to cancel the election in the 7 Polling Units that led to the re-run election… it is therefore clear that the petitioners in participating in the re-run election of 27th September, 2018, were merely complying with the decision of the 1st Respondent, a decision they had no control or choice (over). It follows that the petitioners have not led the
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1st Respondent to act in any detrimental way. One may ask, would the non-participation of the petitioners in the rerun election have stopped the 1st Respondent from going ahead with the decision? The answer is No… It is not in doubt that no declaration and return was made based on the election of 22nd September, 2018. It was after the rerun election of 27th September, 2018 that a declaration and return was made. That means the rights of the Petitioners to challenge the entire election accrued upon the completion of the election of 27th September, 2018…We consider it preposterous for the 1st Respondent who acted unlawfully in cancelling the election of 7 Polling Units or any beneficiary of the re-run election which foundation is faulty, to use the doctrine of estoppel as a sword.” (Pages 3916 -3917 of the Records).
Counsel applauded the above decision and urged us to hold that estoppel and the rule relating to waived cannot apply in the circumstances, or operate against the 1st and 2nd Respondents; he said that 1st and 2nd Respondents had no choice in the matter, as they could not have initiated any challenge against the decision of Appellant, as the
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election was not conclusive. Counsel also cited Section 133 (1) of the Electoral Act which forbids any questioning, complaint or challenge of Appellant for declaring election inconclusive; and by Section 134 (1) of the Electoral Act, election petition can only be filed upon the declaration of the election results and return of a winner. Thus, there is no way of boycotting a supplementary or re-run election by a party that is interested in the outcome of the election. Thus, participation in the re-run was necessary for the rights of 1st and 2nd Respondents to crystallize. Counsel also argued that the doctrine of waiver and acquiescence cannot apply to a constitutional or statutory right, having regards to the provision of Section 285(1)(a)(b) (c) of the 1999 Constitution. He relied on the case of Menakaya Vs Menakaya (2001) 16 NWLR (Pt.738) 203; and Uzodinma Vs Udenwa (2004) 1 NWLR (Pt.854) 303 at 333, where it was held that the doctrine of waiver does not apply to acts done in pursuance of electoral law or statute.
He urged us to resolve the Issues against Appellant and to dismiss the Appeal.
Appellant had filed a Reply Brief, which in the main,
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tried to re-enforce the arguments advanced in the Appellant’s Brief, when Counsel argued that the allegation that it (Appellant) admitted that elections were held in the 7 Polling Units, but result cancelled, did not absolve the 1st and 2nd Respondents from proving their declaratory reliefs, on the strength of their case, relying on Enekwe Vs Int. Merchant Bank of Nigeria Ltd (2006)19 NWLR (Pt.1013) 146 and other cases. Of course, a Reply Brief is not meant to give an Appellant a second chance to repair or remedy the shortcomings in his brief of argument or to repeat or enforce his earlier arguments in the Brief. See Aduba & Ors Vs Aduba (2018) LPELR – 45756 CA; lheka Vs Njoku (2017) LPELR – 42002 CA; Ojiogu Vs Ojiogu & Anor (2010) LPELR -2377 SC; and Ecobank Plc Vs Honeywell Flour Mills Plc (2018) LPELR – 45124 SC, where my Lord, Okoro JSC, said:
“I need to emphasize that the function of a Reply Brief is to answer to the arguments in the Respondents Brief which were not taken in the Appellant’s Brief. It is not meant to be a repetition of the arguments in the Appellant’s brief. It is not an opportunity to re-emphasize the arguments in the Appellant’s Brief.”
The Reply Brief is therefore discountenanced.
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RESOLUTION OF THE ISSUES
I shall adopt the 5 Issues for determination of this Appeal as distilled by the parties, (Appellant and 1st and 2nd Respondents), which I see as the same, except that the Respondents’ Issues appear to be abridged version of the Appellant’s Issues, and more apt, in my opinion. In considering the Issues, I shall take the Issues 1, 2 and 3 together, and the Issues 4 and 5 together, too.
Was the Tribunal in its majority decision right to hold that the 1st and 2nd Respondents had established their Petition in the circumstances of this case, and had rebutted the presumption of regularity inured to Appellant’s documents, especially as Appellant failed to lead evidence at the trial by calling any witness, thereby justifying the holding by the Tribunal of substantial non-compliance with the Electoral laws, and that the same affected the results of the election in the Seventeen (17) Polling Units, under review?
I think I should start by observing that INEC (Appellant) holds a very sensitive office of public trust, with enormous, responsibilities, fundamental to
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the selection of credible leadership, subsistence and progress of the Nigeria, as a Nation. Thus its Officers and handlers must exhibit the highest sense of love, patriotism to the Nation, while also demonstrating uprightness, courage, fairness and transparency in the discharge of their duties, free from political, religious, ethnic or any such primordial inclination or control and affinity; to accord with its name “Independent National Electoral Commission.” This legitimate expectation from Appellant has been restated several times. Though it may sound rather idealistic and utopian, in the con of the present experiences and development in Nigeria, but there appears to be no viable alternative, if genuine democratic principles, as enshrined in the 1999 Constitution (as amended) and the various Electoral Laws, and as yearned for by the citizens, must be attained. The laws have provided excellent platform, in my opinion, for the Nation to attain this lofty aspiration, but the setback appears to always be the human factor – weakness and lack of will/courage to follow the law!
The Appellant (INEC) and its officials are expected to be, and must be
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credible, upright, courageous and fair in the application of their instruments and powers/authorities to serve the interest of the Nation, free from control/manipulation by political parties, government and all the persons struggling for power and out to distract it (INEC) and compromise its powers and authority.
Section 139 of the Electoral Act, 2010 as amended, appears to capture and summarize faith and public trust/confidence reposed in the INEC in the conduct of elections, when it states:
139(1) “An Election will 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 principles of this Act and that the non-compliance did not affect substantially the result of the election.
(2) An Election shall not be liable to be questioned by reason of a defect in title or want of title of the person conducting the election or acting in the office, provided such a person has the right or authority of the Commission to conduct the election.”
The above provision has enjoyed several judicial interpretations
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in favour of the INEC and its official, giving them all the benefits of doubt, in the honest discharge of their responsibilities in the conduct of elections. But that is not meant to make INEC irresponsible and condone in competence impunity, reckless and unaccountable conduct or acts of dishonesty and graft in the performance of its sacred duties. It is rather expected that INEC appreciates and justifies this enormous public trust and confidence in the conduct of its duties; discharge its sacred functions with fear (of God and of the people), equanimity and sense of accountability, avoiding the embarrassing situation of being dragged into the ‘dock’, to debunk accusation of incompetence and compromise of its office, freedom, fairness, credibility and neutrality. It becomes tragic, when/where the Appellant (INEC) is seen to be taking sides, in the conduct of election, or in the defence of its role (at election) in the Tribunal or Court, when its conduct of an election is called to question, suggesting that Appellant (INEC) had stripped itself of its garb of independence, nationality and neutrality.
?In this case, INEC elected to appeal alongside other
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Appellants, in a case it did not even consider necessary or expedient to call evidence to defend its actions and/or explain to the Tribunal why it did what it was roundly accused of; its documents, produced to establish some obvious infractions, including non-filling of some crucial information in Forms EC8A, issued to agents of 1st and 2nd Respondents (as Pink Forms) in some Polling Units, to establish the number of accredited voters in the said Polling Units were compromised, mutilated or ‘doctored’ and abandoned in the Tribunal by INEC. Appellant had filed a Reply to the Petition contesting and/or denying the claims of the Petitioners, but chose to abandon the pleading at the trial!
Yet, Appellant argued this appeal, strongly, saying, that its failure to call evidence was of no consequence, since the case was a declaratory relief, where-of the Petitioners had a duty to establish their claims, and succeed on the strength of their case, not on the weakness of the defence! Appellant argued that the burden on the Petitioners never shifted, even in the circumstances of non-filling of critical columns in the Pink Form EC8As, issued to the Petitioners, as
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opposed to the filling/insertions in and mutilation of the Certified True Copies (CTC) of the same Form EC8As, produced from Appellant’s custody, which the Petitioners alleged were ‘doctored’, ‘mutilated’ and falsified after the election, while in the custody of the Appellant! Of course, the Forms being exhibits before the Court, as documents, speak for themselves. See Otito Vs Odidi (2010) LPELR – 9070; Aiki Vs ldowu (2006) 9 NWLR (Pt.984) 47.
I think Appellant was asserting or taking its rights and protection under Section 139 of the Evidence Act, 2010, as amended, and under the rules of procedure, relating to proof of declaratory reliefs, too far, in the circumstances.
The law is however trite, as ably cited by Appellant and the 1st and 2nd Respondents, that in a declaratory relief, the Plaintiff’s duty to establish his case, and that on the strength of his case, cannot be compromised, the weakness of the defence or even admission by the defence, notwithstanding. See the Cases ofOlawepo Vs Saraki (2009) ALL FWLR (Pt.498) 256 at 311; CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493; and particularly, PDP Vs INEC (2012) NWLR (Pt. 1300) 538 at 561,
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where the Supreme Court said:
“Considering the circumstances of this case, having regard to the state of the relevant facts averred in the petition the evidence adduced by the petitioner/applicant in support of his case, I agree with the two Courts below that the appellant/petitioner failed to prove its case to be entitled to the reliefs sought by it. This is because it is quite clear from the record that the appellant seemed to have capitalized heavily on the failure of the 1st Respondent which conducted the election, to call evidence in its defence to satisfy the contrary to the claim of the appellant/petitioner, that it conducted the election of the 26th April, 2011 in accordance with the provisions of the Electoral Act, 2010 as amended.
However, the appellant seemed to have lost the correct position of the law regarding the onus on it to rely on its own evidence to prove its position, taking into consideration that the nature of reliefs sought in the petition were purely declaratory. That is to say the 1st Respondent was not bound to call evidence to assist the appellant in proving its case which exclusively on the evidence called by the appellant/petitioner.”
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As earlier stated in this judgment, the above remains the position of the law, but I am afraid, the above case of PDP Vs INEC (supra) is distinguishable from the facts of this case at hand, when “considering the circumstances of this case having regard to relevant facts averred in the petition and the evidence adduced in support of the case.”
In this case, the 1st and 2nd Respondents had pleaded and led evidence in proof of their claim of Appellant’s non- recording of accreditation and non-filling of the top right corner of the pink copy of EC8A in their respective Polling Units, relating to the Seventeen (17) Polling Units, named and listed in the Petition. They had called witnesses, who testified and tendered the said pink copies of the Form EC8A, given to the agents of the 1st and 2nd Respondents, immediately after the election at the said Polling Units. The said witnesses also tendered the certified true copies (CTC) of the said Form EC8As, produced from the custody of the Appellant, which rather strangely indicated that the said columns, not filled in the pink copies of the Form EC8A, were filed in the CTC obtained
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from Appellant’s custody! Yet, the two processes (the Pink copy of Form EC8As and the CTC of Form EC8As) were produced by the same uniform process, the pink copy being counterpart original of the other original copy with the Appellant, from which the CTC was produced! The mystery and disparity in the two counterparts of the original Form EC8As and the insertions and mutilations or ‘doctoring’ in the CTC Form EC8A produced from the custody of Appellant needed to be explained, as the evidence by the witnesses had rebutted the presumption of regularity of the documents. That evidence remained unchallenged and incontroverted, and the Tribunal stated that much in its elaborate findings and holding, on page 3893 – 3901 of the Records of Appeal, when it said:
“The issue now is whether the non-recording of the columns for accreditation and ballot accounting on the result sheets is an act of non- compliance. The design and what information or data is to be contained in the result sheets is a mandate of the INEC Manual and Guidelines, Exhibit P615. It is settled knowledge that the INEC Manual for Election Officials was made pursuant to the powers granted the 1st
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respondent under Section 153 of the Electoral Act, 2010 as amended. See Nyesom Vs Peterside (2016) LPELR – 4003 (SC).
The importance of the manual and guidelines was considered in the case of lhuoma vs Azubuike & Ors (2015) LPELR – 25978 (CA) at 36-38 where the Court held thus:
“l think the place of the INEC guideline, regulations and manual for the conduct of election cannot be wished away by any logical arguments, no matter how brilliant, as the guidelines, regulations and manual, by operative rules of procedure, have become part and parcel of the Electoral Act, which vested authority on the Commission (INEC) to make them (guidelines, regulations and manual) for the purpose of giving effect to the provisions of the Act. That, I think, was the purport of the Section 153 of the Electoral Act, 2010, as amended. See the case of Ajadi vs Ajibola (2004) 16 NWLR (part 898) 91 at 165, where Adekeye JCA (as she then was) said: “Manual for election was made pursuant to Section 149 of the Electoral Act, 2002, while the instruction embodied therein are meant to be strictly followed by electoral officers. A contravention shall amount to non-compliance”.
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Continuing further, Mbaba JCA, held that:
“The Section 149 of the Electoral Act, 2002 is in pari material with Section 153 of the Electoral Act, 2010, as amended. Thus, the Manual for Election Officials and approved Guidelines and Regulations for conduct of 2015 General Elections (Exhibit C), made pursuant to Section 153 of the Electoral Act, 2010, provided the rules and regulations guiding the conduct of the April 1 1, 2015 election to the State Assembly seat of Isiala Ngwa North Constituency and the Commission (INEC) had a duty to follow it, strictly”.
See also Fayemi Vs Oni (2009) 7 NWLR (part 1160) 223.
We have looked at the relevant columns which were not filled in some of the EC8A forms.
They are the top eight columns which are meant to carry the following information:
l) Number of Voters on the Register
2) Number of Accredited Voters
3) Number of Ballot Papers Issued to the Polling Unit
4) Number of Unused Ballot Papers
5) Number of Spoiled Ballot papers
6) Number of Rejected Ballots
7) Number of Total Valid Votes (Sum of valid votes cast for all parties)
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8) Total Number of used Ballot papers (sum of 5 + 6 + 7 above)
The use of the word “shall” in paragraph 2.6.4 is mandatory. The above items show that a statement of result which does not contain the information in the appropriate columns is defective. It is our humble view that the above columns carry vital and crucial information which are meant to act as check and control on the electoral activities in a polling unit. They constitute the hangar for testing whether there are irregularities in the conduct of the election. The information of those columns is necessary for any serious effort at proving several malpractices including over-voting and ballot accounting. This is because to prove, over-voting, a party is expected to tender:
(I) The voters register;
(II) The statement of result in appropriate forms which will 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:
(IV) Show that the figure representing the over-voting if removed would result in victory for the petitioner.
See Shinkafi vs Yari (2016) 7 NWLR
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(part 340; Nyesom Vs Peterside (supra) and Andrew Vs INEC (supra).
The non-recording of the 8 vital columns on the result sheet undermines one of the key necessary ingredients for proving over-voting, for example.
Again, the information in those columns is vital for tallying of used and unused ballot papers with the number/quantity issued to the polling unit. This is because it is from such data that you can check if more ballot papers than those issued to the polling unit were cast at the election. In fact, the EC8A is statutory form that gives full and comprehensive information needed for a polling unit. See Terab Vs Lawan (1992) 3 NWLR (part 231) 569.
Section 139 of the Electoral Act, 2010 states:
“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of the Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this and that the non-compliance did not affect substantially the result of the election”.
It has been established in a long line of cases that for a petitioner to succeed in a case of non-
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compliance he has a duty to prove not only that the non-compliance was substantial but also that it substantially affected the result of the election. See Andrew vs INEC (supra); CPC vs INEC (supra); Yusuf Vs Obasanjo (supra) and Akeredolu Vs Mimiko (supra).
In the case of CPC vs INEC (2011) LPELR 8257 (SC) Pages 60 – 61 paragraphs G – B, the Supreme Court per Adekeye, J.S.C held as follows:
“The duty lies on the Court to determine whether or not an election was conducted substantially in accordance with the Constitution and the Electoral Act 2010. The Court will look at circumstance of the case, including the state of pleadings, especially the credibility of the petitioner?s position and the nature and substance of the complaints of the petitioners, the attitude of the functionaries charges with the conduct of the election and whether the omissions complained of by the petitioner even if proved, affected the conduct of the election. Okoroji Vs Ngwu (1992) 9 NWLR (part 263) page 113”.
Judging from the spread of the areas where this non-recording accurred, we are of the opinion that the non-recording was deliberate and tailored towards
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achieving an unwholesome result. This is clear because whatever the scores of the political parties may be any discrepancy when compared to the number of accredited voters and ballot papers issues to the polling units, may later be corrected by the subsequent filling and manipulation of_ the figures in the columns which will then be consciously filled after the conclusion of the elections to remove the discrepancy. This fact became manifest when the CTCs emerged from the custody of the 1st respondent, now having figures in those 8 columns which were not in the pink copies.
The witnesses of the petitioners said that the CTCs were “doctored” of a truth, that is what they are, because the CTCs contained what were obviously inserted on the forms after the election was concluded and the genuinely filled forms issued out to the polling agents. Who made those strange entries? When were the strange entries made? The respondents, particularly the 1st respondent, did not provide any answer. The fact that the CTCs were tampered with and suddenly emerged with figures in the columns and the large spread of the polling unit results where it occurred lends credence
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to our opinion that the act of non-recording of the columns at the time of the election was deliberate.
It is considered opinion that the non-recording of the columns in the result sheets which we regard as the check-list or control columns is an act of non-compliance with the Electoral Act and the Manual for Election Officials.
The argument of the respondents that the non-compliance did not affect the result of the parties because the petitioners’ witnesses testified that they have no quarrel with the scores credited to the parties is not tenable. This is because a party does not have to quarrel with the scores of an election in order to establish electoral malpractices. For example, in cases of allegation of over-voting, the scores of the parties and whether the parties accept the scores is immaterial. What is important is whether the total valid votes cast at the election exceeded the registered or accredited voters. In the same vein, in the instant case, where the number of registered voters, number of issued ballot papers, number of unused, spoilt and rejected ballot papers are not known it is untenable to assert that the scores of the
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parties are valid. The validity of the scores of the parties cannot stand in isolation of a determination of the ballot papers issued and used or rejected in the polling unit for the election.
In the bid to establish the non-compliance by the failure to record accreditation and ballot accounting on the EC8A Forms, the petitioners tendered several of the forms in evidence. It is noteworthy that PW74 also tendered some EC8A forms as exhibits. However, the law is that PW74 not being a polling agent where the results emanated cannot speak to the forms. At the same time, the CTC of the forms tendered from the Bar, as we have held earlier, were dumped on the Tribunal. It is not our responsibility to begin the examination of the documents in the recesses of our chambers, a job the petitioners failed to do in open Court. See Nyesom Vs Peterside (supra); Terab Vs Lawan (supra).
However, the petitioners called some polling unit agents who actually spoke to both the CTC and pink copy of the result sheets of their polling units. A painstaking perusal and analysis of the evidence of the petitioners’ witnesses alongside the documents they tendered reveal
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that only 17 witnesses were on point. They are PW35 (exhibit P417A), PW36 (exhibit P422A), PW37 (exhibit P147A), PW39 (exhibit P279A), PW41 (exhibit P406A), PW44 (exhibit P21A), PW46 (exhibit P88A), PW48 (exhibit P223A), PW50 (exhibit P430A), PW54 (exhibit P60A, PW56 (exhibit P331A), PW57 (exhibit P421A), PW58 (exhibit P428A), PW59 (exhibit P413A), PW60 (exhibit P164A), PW61 (exhibit P426A) and PW62 (exhibit P75A). A study of the result sheets in form EC8A tendered by these witnesses show that the columns in the pink copies are completely blank while the discredited CTC versions had entries.
In order to fully bring out the relevant data on the votes recorded in the 17 polling units, we hereby set them out in a table hereunder:
Exhibit No. PU/Ward LGA SCORE (APC) SCORE (PDP)
P417A PU 008 W8 Osogbo 178 74
P422A PU 009 Osogbo 242 97
P147A PU 007 W10 Ife North 83 27
P279A PU 008 W6 Iwo 42 19
P406A PU 013 W4 Osogbo 113 83
P21A PU003W6 Ayedaade 110 75
P88A PU10W2 Ejigbo 155 80
P223A PU007W9 Ilesha East 176 167
P430A PU007W15 Osogbo 75 33
P60A PU006W5 Boripe 118 70
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P331A PU 009W4 Olorunda 131 75
P421A PU002 W11 Osogbo 108 51
P428A PU003 W15 Osogbo 29 24
P413A PU008W7 Osogbo 82 59
P164A PU004W9 Ife South 89 55
P426A PU003 W12 Osogbo 67 45
P75A PU004 W4 Egbedore 231 120
Total – – 2,029 1,246
In Onuigwe vs Emelumba (2008) LPELR – 4787 (CA) at 37, it was held that:
“Act which may be regarded as sufficient to substantially affect the result of an election need not necessarily be widespread non-compliance. Such acts may occur in a few places, yet their effects are so significant to the overall result of the election that it cannot be ignored. It is not the number of stations where or how widespread the non-compliance has occurred which is relevant, it is the effect of the non-compliance on the overall result of the constituency involved. See Biyu Vs Ibrahim (2006) 8 NWLR (part 981) page 1 at page 50; Sorunke vs Odebunmi (1960) SCLNR 414 and Oputeh vs Ishida (1993) 3 NWLR (part 279) 34″.
The effect of our finding on the non- recording of the necessary columns in the identified EX8A forms means that the votes from the affected 17 polling units are invalid. The votes are APC 2,029 and PDP
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1,246. The shall be deducted from the final scores of the parties.” (Underlining mine).
I do not see how those sound findings of the majority decision of the Tribunal can be faulted, especially as Appellant, in the main, did not appeal against those findings, but is simply arguing in this appeal that it (Appellant) did not have to call evidence in the case; that 1st and 2nd Respondents had a duty to establish their claim on the strength of their case, whether or not Appellant testified.
Of course, the Tribunal by its majority decision was satisfied that 1st and 2nd Respondents had established that arm of their claim and so struck down the scores of the parties (APC & PDP) in respect of the said 17 Polling Units, and deducted their votes therein from the overall votes of the parties.
What surprises me is the vehemence of the Appellant in contesting this point on appeal, when it failed to adduce evidence at the Tribunal to defend/justify its acts/conduct, and when the decision of the Tribunal herein affected all the parties to the election, evenly, and Appellant appears to suffer no loss!
The law is also trite, that where there is no
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defence to a claim, the Plaintiff’s burden of proof is discharged on a minimum of proof. It is also the law that, though the Plaintiff in a declaratory relief, must succeed on the strength of his case, not on the weakness of the defence, the Plaintiff can take advantage of admissions by the defence, which tend to establish the Plaintiff’s case. SeeIdris Vs Seine (2019) LPELR – 46993 CA; Anyanru vs Mandilas Ltd (2007) 4 SCNJ 288; Chukwuma vs SPDC Nig. Ltd (1993) LPELR – 864 SC; Matanmi & Ors vs Dada & Anor (2013) LPELR – 19929; Oguanuhu vs Chiegboka (2013) 2 SCNJ 693.
1st and 2nd Respondents had also argued that their case was not all for declaratory reliefs, citing reliefs Vll, Xlll, XIV and XVII for instance which sought some specific orders, nullifying 3rd and 4th Respondents’ return, and cancelling all votes in all voting units, where the Petitioners established over-voting and non-accreditation during the Osun State Governorship elections, etc. Of course, the issue under contention fell under the Relief XIV, having to do with cancellation of votes in all the 17 polling units where non-accreditation during the election, or non-recording of the
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relevant information was established.
Appellant therefore, had a duty to lead credible evidence in rebuttal of that head of claim, in my opinion, rather than abandoning its defence, and thereafter resort to employing Counsel Brilliance in address (Brief) to elicit evidence it failed to give at the trial. The law is trite, that Counsel’s address/brief, no matter how brilliant, cannot substitute the evidence needed to sustain a case. See Amah Vs Amah (2016) LPELR – 41087 (CA); Sheka vs Bashari(2013) LPELR – 21403 (CA); Oyekan vs Akinrinwa (1996) 7 NWLR (Pt.459) 128; Ojo vs FRN (2008) 11 NWLR (Pt. 1099) 467; Okuleye vs Adesanya & Anor. (2014) LPELR – 23021 (SC).
Counsel on both sides had addressed us, extensively, on the issue of presumption of regularity of the documents of the Appellant (INEC) in the case. Of course, the presumption of regularity of the documents inured strongly, in favour of Appellant, as in keeping with every official document. See Section 168 of the Evidence Act, 2011 which says:
“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal
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requisites for its validity were complied with.”
That also places a heavy burden on the party who challenged that presumption of the regularity of the official document. See Section 137(1) of the Evidence Act 2011, and this becomes more tedious in Election matters. See Hashidu Vs Goje (2003) 15 NWLR (P.843) 352; CPC vs INEC (2012) ALL FWLR (Pt.617) 605 at 639; Buhari vs Obasanjo (2005) 2 NWLR (Pt.910) 241.
The above cannot however inure to the benefit of Appellant in this Appeal, as I have already held that the trial Tribunal was right to hold that the presumption of regularity had been rebutted in this case, in view of what looked like deliberate manipulation of the processes (documents) to compromise the election in the affected 17 Polling Units. See the reasoning inDaggash Vs Bulama (2004) 14 NWLR (Pt.892) 204 – 205 and Aja vs Odin (2011) 5 NWLR (Pt. 1242) 509 at 534 – 537, on the need for a document produced by the same uniform process, like printing etc in several parts, to remain and be the same, as original copies, and any spot of disparity in copies to be suspect and questionable. It is trite that, where a number of documents have all been
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made by one uniform process, as in the case of printing, lithography or photography, each shall be primary evidence of the content of the rest. See Section 86(3) of the Evidence Act, 2011; Daggash Vs Bulama (2004) 14 NWLR (Pt.892) 204 – 205.
It was clear that the Form EC8As (Pink copies) given to the parties by the Appellant and the CTC of the same Form EC8A produced from the custody of the Appellant (meant to be originals of the same process) spoke differently, and conflicted, providing the basis for rebuttal of the presumption of regularity. See Section 63 of the Electoral Act, as to the duty of Appellant. It was also found by the Tribunal, that the widespread nature of the obvious defect suggested it was a deliberate act of the Appellant to compromise the credibility of the elections and so it affected the outcome of the elections, to qualify as substantial non-compliance.
Of course, Appellant did not appeal against those critical findings and so they remain confirmed, binding and conclusive. See Darma vs Mustapha (2014) LPELR – 23734 CA; Nmanumeihe Vs Njemanze (2016) LPELR – 40212 CA; CPC vs INEC (2011) 18 NWLR (Pt. 1279) 493;
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NZE vs ARIBE (2016) LPELR – 40617 CA; Michael vs The State (2008) LPELR – 1874 SC; (2008) 13 NWLR (Pt. 1104) 361.
Appellant cannot therefore, sincerely hold to its submission, that 1st and 2nd Respondents did not prove over-voting in respect of the said 17 Polling Units to warrant the decision of the Tribunal to cancel the elections there at. Appellant simply argued that there was no tendering of the Voters Register or that the Register of Voters tendered was simply dumped on the Tribunal. In this case, that was not the reason the Tribunal gave for its decision, and I do not think the production of the Register of Voters was even necessary to establish that Form EC8As (pink copies), which failed to indicate the number of accredited Voters, could authenticate any credible election, where there was no way of knowing the actual number of voters and the votes scored by parties, in the absence of disclosure of total number of voters at the Polling Units and the other vital information required in the 8 columns. And in the situation of conflicts represented by the CTC Forms EC8As, the uncertainty as to the credibility of the said election process, was compounded,
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justifying the nullification of the process (election) at the affected Polling Units. See the case of Atikase Otito vs Kunle Odidi (2010) LPELR – 9070; Aiki vs Idowu (2006) 9 NWLR (Pt.984) 47; Dung vs Railway Property Management co. Ltd (2018) LPELR – 45378 CA and Ashakacem Plc Vs Mubashshurun Inv. Ltd (2019) LPELR – 46541 (SC), on the power and preference of documentary evidence, which speaks loudly and requires no oral deposition to completed, vary, support or explain it. The pink copies of EC8A and the CTC copies spoke differently for themselves though they were supposed to be the same! See again what is expected of INEC Official at the Polling Units in Section 63 of the Electoral Act. There is therefore no disputing substantial non-compliance was established in the circumstances, warranting the majority decision of the Tribunal. See Section 139(1) of the Electoral Act 2010, as amended; Buhari vs Obasanjo (2005) 13 NWLR (Pt.941) 1; Buhari vs INEC (2008) 19 NWLR (Pt. 1120) 246; CPC vs INEC (2011) 18 NWLR (Pt. 1279) 493.
The lower Tribunal had rightly, in my view, held that the 1st and 2nd Respondents had proved non-compliance and that the
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non-compliance had substantially affected the election at the affected polling units. I cannot fault that decision, especially as the Appellant has not appealed against the crucial findings that led to that decision, which had founded on the decision in Onuigwe vs Emelumba (2008) LPELR – 4787 CA to the effect that:
“Acts which may be regarded to substantially affect the result of an election need not necessarily be widespread non-compliance. Such act may occur in a few places. Yet their effects are so significant to the overall result of the election that it cannot be ignored. It is not the number of stations where or how widespread the non-compliance has occurred which is relevant, it is the effect of the non-compliance on the overall result of the constituency involved.”
The trial Court had said:
“The effect of our findings on the non-recording of the necessary columns in the identified EC8A Forms means that the votes from the affect polling units are invalid. The votes are APC 2,029 and PDP 1,246. They shall be deducted from the final scores of the parties.”
I cannot see how the above decision affected the interest of the Appellant,
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who should rather learn from the decision and call its officials to take note of the decision and order, to handle their duties properly and professionally, next time.
The trial Tribunal had also relied on Aregbesola Vs Oyinlola (2010) LPELR – 3805 CA, where this Court held on the successful proof of non-compliance in respect of 10 Local Government Areas of Osun State and nullified the votes from the said local governments, and went ahead to declare the Petitioner/appellant the winner of governorship election on the basis of the votes from the remaining local governments of the State.
I think that case is apposite to this case at hand, and I cannot disturb the findings and holding of the Tribunal in respect of the affected 17 Polling Units. I therefore resolve the Issues 1, 2 and 3 against the Appellant.
The Issues 4 and 5 were:
Whether the Tribunal was correct when it held that the re-run was improper as it was the Returning Officer and not Presiding Officers of the Polling Units, who cancelled the election on those 7 Polling Units?
And whether the Tribunal was right when it held that by participating in the Re-run election of
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27/9/18 the 1st and 2nd Respondent did not waive their right to complain?
I think the sacred facts relating to the Issue 4 were admitted by both sides to this appeal, namely:
(1) That election held on 22/9/18 in the affected Polling Units under consideration
2. That the results of the said 7 Polling Units were cancelled by the State Returning Officer, who also ordered a Re-run election
3. That the results of the said 7 Polling Units were not cancelled by the Presiding Officers of the affected polling units
4. The cancellation of the Results was not explained or justified by the Appellant who failed to lead evidence on it at the trial.
By law, facts admitted require no further proof. SeeJitte Vs Okpulor (2015) 12 SC (Pt.] 1) 77; Oseni vs Bajuhi (2010) ALL FWLR (Pt.51 1) 813 at 829; Pina vs Mai-Angwa (2018) LPELR – 44498 (SC); Solana vs Olusanya & Ors (1975) LPELR – 3097 SC.
?Appellant Counsel had argued, generally, that the State Returning Officer had the right and power to cancel election and to order a re-run of the election. But the 1st and 2nd Respondents did not quarrel about the Returning Officer’s power to
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declare election inconclusive and to order a Re-run of the election. Their grouse was mainly on how the cancellation of the election in the affected 7 Polling Units was done and by who as prelude to declaration of, the elections of 22/9/18, inconclusive and ordering of the re-run. They had argued that, if the Returning Officer did not unlawfully cancel the election in the 7 Polling Units, there would have been no need or reason to declare the elections of 22/9/18, inconclusive, and order a Re-run.
The majority decision of the Tribunal agreed with the 1st and 2nd Respondents, relying on the Election Manual for Electoral Officers 2018, when it held:
“There is no doubt that the petitioners have through their admitted pleadings and unchallenged evidence of PW74 satisfied the burden of proof that it is the State Returning Officer who cancelled the election in the 7 polling units. The burden has successfully shifted on the respondents to justify the cancellation, particularly the 1st Respondent who pleaded in paragraph 16 of its reply to the petition “that the Returning Officer appointed by the 1st Respondent has the right under the relevant laws and
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manuals of the 1st Respondent to cancel any election and fix another date for a supplementary election as was done on the 22nd day of September, 2018 and 27th day of September 2018 respectively.”
This is a positive assertion of a right to do a particular act and the burden is now on the 1st Respondent to establish the existence of that right. See Section 131(1) and 136(1) of the Evidence Act, 2011.
Not only did the 1st Respondent fail to call any evidence to show the right of the returning officer to cancel “any election” but her Counsel did not make any statement or argument on that point or refer the Tribunal to the law or guideline that gave the returning officer such right in his final written address. Even after the 1st Respondent’s Counsel saw the final address of the petitioners’ Counsel, which seriously contended that the returning officer has no power to cancel any election, the 1st Respondent’s Counsel has no response as he did not file any reply address.
The effect of the admission in the pleadings of the respondents, the unchallenged evidence of PW74 and the absence of any rebuttal evidence from the respondents is that the
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petitioners have discharged the burden of proving that it was the State Returning Officer who cancelled the election in the 7 Polling Units on a minimal proof. See Asafa Foods Factory Ltd Vs Alraine (Nig.) Ltd & Anor (2002) LPELR – 570 (SC) and SPDC (Nig.) Ltd vs Edamkue & Ors (2009) LPELR – 30048 (SC).
We are left to determine if the State Returning Officer has the power or right to cancel an election. The duties of the State Collation/Returning Officer is contained at paragraph 3.11, steps 1- 16, pages 81 – 82 of the Manual for Election Officials 2018, Exhibit P615.
For the sake of clarity, we reproduce the duties anon:
3.11 Final Collation and Declaration of Governorship Election Results at State Level:
The State Collation/Returning Officer for the Governorship shall:
Step 1: take delivery of the original copies of Form EC.8C from the Local Government Area/Area Council Collation Officers, together with other materials and reports relating to the election, including Form EC.40G(1) and Form EC40H(3);
Step 2: transfer the votes scored by each party from Forms EC.8C into Form EC.8D and enter the votes scored, in
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both words and figures, in the spaces provided;
Step 3: add up the LGA results to obtain the State summary and complete Form EC40H(4) from Form EC40H(3);
Step 4: cross-check the totals with the Electronic Collation Support Secretariat, where available, for computational accuracy;
Step 5: transfer the total number of registered voters of affected polling units. from Forms EC.40G(1) into Form EC.40G(2), where election is cancelled or not held, in respect of all LGAs in the State;
Step 6: cross-check the entries in Form EC.8D, carefully and announce loudly the votes scored by each party;
Step 7: sign and date the Form and request the Polling Agents to countersign;
Step 8: distribute copies of Form EC.8D to Party Agents and the Police;
Step 9: compare the total number of voters on Form EC.40G(3), with the Margin of Win between the two leading Candidates;
Step 10: if the Margin of Win is in excess of the figure recorded in Form EC.40G(3), proceed to enter the scores of the Candidates in Form EC.8E for the declaration of the Governorship Election result;
Step 11: compare, carefully, Form EC.8E, sign and date same;
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and;
Step 12: declare the result of the Governorship Election and return the Candidate who has the majority of valid votes cast at the election; and as not less than one-quarter of the valid votes cast at the election, in each of at least two-third, of all the LGAs in the State;
Step 13: distribute copies of for EC8E to Party Agents/Candidates of participating political parties in the election and the Police;
Step 14: Where the Margin of Win between the two leading Candidates is not in excess of the total number of registered voters of the Polling Unit(s), where elections were cancelled or not held, decline to make a return until another poll has taken place in the affected Polling Unit(s) and the results incorporated into a new Form EC.8D and, subsequently, recorded into Form EC8E for Declaration and Return;
Step 15: complete the Notice of Result of Poll Poster EC.60E and display it at the Collation Centre; and
Step 16: Hand over to the State Resident Electoral Commissioner the original copy of Form EC.8D and the Declaration of Result Form EC.8E, together with other materials pertaining to the election.
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A careful study of the activities of the State Collation/Returning Officer does not include power to cancel any result or election. However, by step 9, 10 and 14 of the Manual the State Collation/Returning Officer has the power compare the total number of voters on Form EC.40G(3) with the margin of win of the two leading candidates and where the margin of win is not in excess of the total number of registered voters of the polling units where election was cancelled or not held decline to make a return until another is conducted in the affected polling units.
Since we have found that the State Collation/Returning Officer has no power under the manual for election officials to cancel an election, the necessary question that begs for answer is who has the power to cancel an election or make a report about any incident concerning an election?” (See pages 3909 – 3911 of the Records of Appeal).
The Tribunal also found that in the said Manual, Paragraph 3.2, the Ward Collation Officer, to whom the Presiding Officer reports, has the duty to:
“Receive and consider, if any, the reports of anomalies, adverse incidents, and equipment failure from the Presiding Officers
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including reports of where Polls are either cancelled or not held.”
The Tribunal also resolved that the power to cancel election at the 7 Polling Units resided with the Presiding Officers of the respective Polling Units. See Pages 3911 – 3912 of the Records and Chapter 3 Paragraph 3.2 of the Election Manual for Electoral Officers 201 8 (Exhibit P61 5).
Also, I notice that Appellant’s Appeal did not fault those clear findings of the Tribunal, just as Appellant did not lead any evidence to establish any contrary position. Appellant argued in paragraph 7.03 of their brief that both the Presiding Officer and the Returning Officer are permitted under the Manual (Exhibit P615) to act for an on behalf of Appellant in their respective capacities to either confirm the compilation of an electoral process in their domain or pronounce same inconclusive/cancelled, depending on the peculiar circumstances of each case; that it is the stage where each of the listed conditions becomes discernible and apparent that determines the applicable and corresponding official that has the obligation to act at that stage.
?I think Appellant’s Counsel was trying to use
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words and jargons to embellish and confuse what is already a very simple and clearly spelt out spheres of functions and services by the Presiding Officers, Ward Collation Officers, Local Government Collation Officers and Collation/Returning Officers, as also analysed by the Tribunal in the majority judgment. It is the duty of the Presiding Officer to give report to Ward Collation Officers, who receive and consider the reports and communicate the Local Government Collation Officer etc and any report of anomalies, adverse incidents and equipment failure from the presiding officers, including report of where polls are either cancelled or not held, by the Presiding Officer was to be made in Form EC40G at the polling units, where election was cancelled, or not held; and the original copies of Forms EC8B, EC8Bl and EC8Bll, together with other materials and equipment and reports (if any) were to be forwarded to the Ward Collation Officer, who, would in turn, communicate the LGA Collation centre, and finally the State Collation/Returning Officer, who would receive similar report from the LG Officer.
The State Returning Officer cannot bypass the officers under
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him, to directly go down to cancel election at the polling units, without the Form EC40G from the presiding officer. The steps 5, 9 and 14 of paragraph 3.11 of the Manual (Exhibit P61 5) shows where and when the Returning Officer can act, to declare a return or declare election, inconclusive, and order a re-run.
He acts, for that purpose, based on the report in Form EC40G transmitted, from the Presiding Officer, through the Ward Collation Officer and Local Government Collation Officer showing that there was no election or that the election was cancelled by the presiding officer at the Polling Unit.
?Thus, where there is no such report from the subordinate (presiding officer), the Returning officer cannot cancel an election of the polling units, and rely on such pronouncement of cancellation to declare election in the affected polling unit(s) inconclusive and order for a re-run election. That much was clearly articulated by the majority decision of the Tribunal, and I see no reason to disturb the findings. See the case of Faleke vs INEC (2016) 18 NWLR (Pt. 1543) 61 on when an election can be declared inconclusive and a re-run ordered.
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The INEC Manual (Exhibit P615) being a subsidiary legislation was designed to guide the INEC Officials in their duties and they are bound to follow and uphold the terms and tenor of the Manual. See the case oflhuoma Vs Azubuike & Ors (2015) LPELR – 25978 CA where this Court held:
“…The place of INEC guidelines, regulations and manual for the conduct of election cannot be wished away by any logical argument no matter how brilliant as the guidelines, regulations and manual, by operation rules of procedure, have become part and parcel of the Electoral Act, which vested authority on the INEC to make them guidelines, regulations and manual for the purpose of giving effect to the provisions of the Act. That I think is the purport of Section 153 of the Electoral Act 2010, as amended.”
It would appear that the cancellation of the elections at the 7 Polling Units by the State Returning Officer was orchestrated by the Appellant for the purpose of declaring the overall elections inconclusive for the purpose of ordering a re-run as observed by the Tribunal judgment. And it is, indeed, sad to note that Appellant also sought to rely on that unlawful act to deny the
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1st and 2nd Respondents the right of contesting or questioning that unlawful act at the Tribunal, alleging estoppel against them; that having taken part in the Re-run, the 1st and 2nd Respondents cannot again question the declaration of the election, inconclusive and the re-run! That would amount to flogging a child wrongly and at the same time trying to penalize him for crying!
I am surprised Appellant (INEC) could come out with such brazen conduct as if it is a rival political party, to check mate an opponent!
The law is well established that Returning Officer has no power to cancel election results at the polling unit. See the case of Doma vs INEC (2012) 13 NWLR (Pt. 1317) 297 at 328 C-D, the Supreme Court, per Muntaka-Coomassie, JSC held as follows:
“What baffles me the most is the fact that the result of the election was shamelessly cancelled and voided by a collation officer and not by the presiding officer, DW9 who has power in law to have done so at the polling unit. How can DW3, a collation officer, have the guts of cancelling the result of a whole election and that action would be accepted. Having considered the whole issue I think
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the position taken by the Court below was correct in law.”
Also, in the case recent case of Ikpeazu Vs Otti (2016) 8 NWLR (Pt. 1513) 38 at 84 – 85 G-B, the Supreme Court, per Galadima, JSC held as follows:
“Beyond arguments of respective counsel on this issue, the law has been fairly settled on whose responsibility it is to cancel an election result. The two lowers Courts are ad idem on this. It cannot be disputed either that the appellant and the respondents herein were in agreement as well at the trial tribunal that the State Returning Officer had no power whatsoever to cancel polling results… In Doma Vs INEC (supra), the authority to cancel election results came up for consideration. In the case DW3 who was the collation officer purported to have cancelled results of the election as against DW9 who was the presiding officer at the polling unit. This Court did not only hold that the State Returning Officer has no power in law to cancel election results but deprecated his “guts” to have done so.”
?The evidence of PW74 was clear that he saw when the State Returning Officer cancelled the elections of the 7 Polling Units. Of course, he was
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at the venue and that evidence was not hearsay.
An order of a re-run following an inconclusive election is a mandatory order which every political party interested in the outcome of the election must comply with. See Sections 133(1) and 134(1) of the Electoral Act, 2010 as amended. A party/person cannot even challenge the declaration of election inconclusive, nor can he seek any remedy over an by Appellant, election that has not been concluded and the winner returned. SeeFaleke vs INEC (2016) 18 NWLR (Pt.1S43) 61. The Tribunal, in my opinion, properly appreciated this, when it held:
“…It was not the Petitioners that made the 1st Respondent to cancel the election in the 7 Polling Units that led to the re-run election… it is therefore clear that the petitioners in participating in the re-run election of 27th September, 2018, were merely complying with the decision of the 1st Respondent, a decision they had no control or choice (over). It follows that the petitioners have not led the 1st Respondent to act in any detrimental way. One may ask, would the non-participation of the petitioners in the rerun election have stopped the Respondent from going
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ahead with the decision? The answer is No… It is not in doubt that no declaration and return was made based on the election of 22nd September, 2018. It was after the rerun election of 27 September, 2018 that a declaration and return was made. That means the rights of the Petitioners to challenge the entire election accrued upon the completion of the election of 27th September, 2018… We consider it preposterous for the Respondent who acted unlawfully in cancelling the election of 7 Polling Units or any beneficiary of the re-run election which foundation is faulty, to use the doctrine of estoppel as a sword.” (Pages 3916 – 3917 of the Records).
Of course, one cannot be said to have waived a constitutional or statutory right. See Ogbonna Vs A.G. Imo State (1992) LPELR – 2287 (SC); Menakaya vs Menakaya (2001) 18 NWLR (Pt.738) 203 at 263; Uzodinma vs Udenwa (2004) NWLR (pt.854) 303 at 333.
It should be stated that the doctrine of estoppel and waiver cannot apply to protect one who seeks to profit from illegality or from his own mischief. See Ugwu Vs Ararume (2007) LPELR – 3329 (SC), where my Lord Niki Tobi JSC (of blessed memory) said:
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“The doctrine of estoppel cannot work in favour of parties who mutually give their consent or agree to an illegality. Estoppel, an equitable principle, cannot condone illegality. It rather aids justice and fair play.”
In the case of Saleh Vs Abah & Ors (2017) LPELR – 41914 SC, my Lord Bage Jsc held:
“We are of the firm view that a party must not be allowed to profit from his or her fraud.”
Appellant would be seeking to profit from its unlawful act of wrongly cancelling the result of the elections in the 7 Polling Units and declaring the election of 22/9/18 inconclusive, ordering a re-run, only to try to penalize the 1st and 2nd Respondents for taking part in the re-run of 27/9/1 8, while also contesting the re-run.
I see this appeal by INEC as a great misadventure, as I resolve the Issues 4 and 5 too, against Appellant. I dismiss the Appeal for being devoid of merit.
?I make no order as to cost, as I think awarding cost against Appellant is at the expense of the general public.
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Appearances:
Yusuf Ali, SAN with him, K.K. Eleja SAN, Prof. Wahab Egbewole SAN, Bashir Isa, Esq., Adesina Agbede, Esq. and Alex Akoja, Esq.For Appellant(s)
Dr. Onyechi Ikpeazu, SAN with him, Chief N.O.O. Oke SAN, Dr. Paul C. Ananaba SAN, Emeka Okpoko SAN, Kehinde Ogunwumiju SAN and all other counsel listed in the counsel list submitted for 1st and 2nd Respondents.
Chief Wole Olanipekun, SAN with him, John Olushola Bayeishea SAN, Abiodun Owonikoko SAN, Dayo Akinlaja SAN, Bode Olanipekun SAN, Abiodun Olaide, Esq., Dr. Ajibloa Basiru, Esq., Abdulrasaq Adeoye, Esq., Dr. M.T. Adekilekun, Esq., Aso Amata Othuke, Esq., M.O. Adebowale, Esq., Olugbenga Fayemiwo, Esq., Sismisola Okenla, Esq., Ayo Olatubora, Esq., Ayo Olatubora, Esq. and Olajide Salami, Esq. for 3rd Respondent.
Chief AKIN Olujimi, CON, SAN with him, Dr. Abiodun Layonu SAN, Chief Yomi Aliyu SAN, A.A. Abimbola, Esq., A.W. Salimon, Esq., Olayinka Okedara, Esq., Kolapo Alimi, Esq., Olumide Olujinmi, Esq., Oloyede Oyediran, Esq. AND Ayodele Akisanya, Esq. for 4th RespondentFor Respondent(s)
Appearances
Yusuf Ali, SAN with him, K.K. Eleja SAN, Prof. Wahab Egbewole SAN, Bashir Isa, Esq., Adesina Agbede, Esq. and Alex Akoja, Esq.For Appellant
AND
Dr. Onyechi Ikpeazu, SAN with him, Chief N.O.O. Oke SAN, Dr. Paul C. Ananaba SAN, Emeka Okpoko SAN, Kehinde Ogunwumiju SAN and all other counsel listed in the counsel list submitted for 1st and 2nd Respondents.
Chief Wole Olanipekun, SAN with him, John Olushola Bayeishea SAN, Abiodun Owonikoko SAN, Dayo Akinlaja SAN, Bode Olanipekun SAN, Abiodun Olaide, Esq., Dr. Ajibloa Basiru, Esq., Abdulrasaq Adeoye, Esq., Dr. M.T. Adekilekun, Esq., Aso Amata Othuke, Esq., M.O. Adebowale, Esq., Olugbenga Fayemiwo, Esq., Sismisola Okenla, Esq., Ayo Olatubora, Esq., Ayo Olatubora, Esq. and Olajide Salami, Esq. for 3rd Respondent.
Chief AKIN Olujimi, CON, SAN with him, Dr. Abiodun Layonu SAN, Chief Yomi Aliyu SAN, A.A. Abimbola, Esq., A.W. Salimon, Esq., Olayinka Okedara, Esq., Kolapo Alimi, Esq., Olumide Olujinmi, Esq., Oloyede Oyediran, Esq. AND Ayodele Akisanya, Esq. for 4th RespondentFor Respondent