MRS. OLVADE BEMA MADAYI & ANOR v. KWAMOTI BITRUS LAORI & ORS
(2019)LCN/13822(CA)
In The Court of Appeal of Nigeria
On Saturday, the 26th day of October, 2019
CA/YL/EPT/AD/FH/169/2019
RATIO
THE DUTY OF A PETITIONER IN AN ELECTION PETITION WHEN HE CLAIMS A NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT(AS AMENDED)
The Supreme Court has noted that proof of non-compliance with provisions of the Electoral Act in the conduct of an election which rests squarely on the petitioner is a herculean task and the decision of a petitioner to file a petition seeking the nullification of an election on grounds of non compliance is not a decision to be taken lightly. This is because the results declared by INEC are prima facie correct and the onus is on the petitioner to prove the contrary. Where a petitioner complains of non-compliance with the provisions of the Electoral Act (as amended), he has a duty to prove it polling unit by polling unit, ward by ward and the standard required is proof on the balance of probabilities and not minimal proof. He must show figures that the adverse party was credited with as a result of the non compliance, necessary Form and election materials not stamped/signed by Presiding Officer. He must establish that non compliance was substantial and that it affected the result of the election. It is only then that the Respondents are to lead evidence. See Ngige V. I.N.E.C (2015) 1 NWLR (Pt. 1440) 281 at 313 F-H, Emmanuel V. Umana (2016) 2 SCNJ 371 at 682 and Ucha V. Elechi (2012) 13 NLWR (Pt. 1317) 330 at 359. Where the ground for challenging the return of a candidate in an election is for reason of corrupt practices or non-compliance with the provisions of the Electoral Act, the petitioner must prove:
a) That the corrupt practice or non-compliance took place and
b) That the corrupt practices or non-compliance substantially affected the result of the election. See Nyesom V. Peterside (2016) (supra). PER JAMES SHEHU ABIRIYI, J.C.A.
ELECTION PETITION:WHEN PARTIES DO NOT PROVE NON COMPLIANCE WITH THE ELECTORAL ACT AND THE EFFECT
From a cursory look at the evidence of the ten witnesses called by the Appellants, it can be seen as shown above that they did not prove non compliance with the Electoral Act or any corrupt practices. But the Appellants tendered a large quantity of documents from the bar. It is the law that when a document or documents is/are tendered in Court, the person tendering the document must in open Court guide the Court by oral evidence on the purpose it is tendered or what it relates to. As Muhammed JSC in Maku V. Al-Makura (2016) 1 SCNJ 481at 509 put it:
All facts that entitled the party to the Courts? indulgence must be demonstrated in open Court to ensure that in arriving at its decision on the matter, the Court is as detached and neutral as anyone could easily see. The examination of exhibits outside the Court and behind the litigants certainly stands in the way of these necessary and laudable traits.?
PER JAMES SHEHU ABIRIYI, J.C.A.
WHEN DECLARATORY RELIEFS WILL BE GRANTED
They are not granted even on admission. They are only granted where the party seeking the declaratory relief proves to the satisfaction of the Court that he is entitled to the declaration. See Chukwumah V. S.P.D.C. (Nig.) Ltd (1993) LPELR 864 SC and Commissioner of Police Taraba State & Anor V. Daboh & Anor (2019) LPELR- 47215 CA. PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
1. MRS. OLVADE BEMA MADAYI
2. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. KWAMOTI BITRUS LAORI
2. PEOPLE DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 28th August, 2019 in the National and State Houses of Assembly Election Petition Tribunal sitting at Yola, Adamawa State. The Appellants were the Petitioners. The Respondents were the Respondents.
The Appellants at the Tribunal sought for the following reliefs:
?a. A DECLARATION that the election of the 1st Respondent as Honourable Member representing Demsa/Numan/Lamurde Federal Constituency was invalid by reason of corrupt practices.
b. A DECLARATION that the election of the 1st Respondent as Honourable Member representing Demsa/Numan/Lamude Federal Constituency was invalid by reason of substantial non compliance with the Electoral Act 2010 (As amended).
c. A DECLARATION that the 1st Respondent, Kwamoti Bitrus Laori was not duly elected as Honourable Member representing Demsa/Numan/Lamurde Federal Constituency by majority of lawful votes cast at the election held on the 23rd February, 2019.
d. AN ORDER mandating the 3rd Respondent to withdraw the Certificate of Return handed to the 1st Respondent, the election into the Demsa/Numan/Lamurde Federal Constituency held on the 23rd day of February, 2019 having been marred by corrupt practices and non-compliance with the Electoral Act 2010 (as amended).
e. AN ORDER mandating the 3rd Respondent to conduct a fresh election in the nullified/affected polling units, wards and/or Local Government Area for the Demsa/Numan/Lamurde Federal Constituency election held on the 23rd day of February,2019.
f. And Cost of the Petition.
The petition was brought upon the following grounds:
?i. The 1st Respondent was not duly elected by majority of the lawful votes cast at the election;
ii. The Election of the 1st Respondent, Kwamoti Bitrus Laori is invalid by reason of substantial non-compliance with the provisions of the Electoral Act, 2010 (As Amended).
iii. The election of the 1st Respondent is invalid by reason of corrupt practices perpetrated by the 1st Respondent in person and members and agents of the 1st and 2nd Respondents in the places mentioned in this petition.?
The 1st Appellant was a candidate of the 2nd Appellant at the election into the Federal House of Representatives for the Demsa/Numan/Lamurde Federal Constituency held on 23rd February, 2019. The 1st Respondent contested the election on the platform of the 2nd Respondent. Eleven other candidates contested the election under various political parties and the 1st Respondent was declared winner of the election by the 3rd Respondent.
The Appellants were dissatisfied with the declaration of the 1st Respondent as winner of the election and approached the Tribunal for redress.
The Appellants called four witnesses who were at different collation centres. One of them PW1 said while he was at the collation centre, supporters of the 1st and 2nd Respondents surged towards the centre and he ran away only to return in the morning the following day. PW2, PW3 and PW4 said they noticed discrepancies and contradictions in most of the results from the wards.
Three polling units agents were called. One of them PW6 said that the Smart Card Reader at the polling unit he was failed. Then there was chaos and multiple voting and he was chased away from the polling unit. PW8 said the polling clerk in the unit where he was voted on behalf of many voters for the 1st and 2nd Respondents.
The third polling unit agent PW10 said that some voters voted with permanent voters cards which did not belong to them.
One ward agent testified as PW5. According to him, results were adjusted by a Senior Presiding Officer. The Smart Card Reader failed and voting continued without the use of the Smart Card Reader.
PW9 was a supervisor at a polling unit. According to him he discovered one Presiding Officer thumb printing ballot papers on behalf of the 1st and 2nd Respondent.
A sea of documents was tendered from the bar.
The 1st Respondent testified in his own defence and called no witness. In a resum his defence was that the election was conducted in substantial compliance with the provisions of the Electoral Act, 2010 (as amended).
The 2nd and 3rd Respondents did not defend the action.
After considering the evidence adduced before it and written addresses of learned counsel for the parties, the Tribunal dismissed the petition.
The Appellants have proceeded to this Court by a notice of appeal dated 9th September 2019 and filed on 10th September, 2019. The notice of appeal contains six grounds of appeal.
From the six grounds of appeal, the Appellants have presented the following six issues for determination:
1. Whether the Judges were right to held(sic) in their judgment that the Appellants shall prove non-compliance with (sic) the provisions of the Electoral Act, 2010 (As Amended) Polling Unit by Polling Unit when some of the act (sic) of non-compliance with the provisions of the Electoral Act, 2010 (As Amended) were committed at the collation Centres. ?(Distilled from ground One of the Grounds of Appeal).
2. Whether the trial Judges were right to held (sic) in their judgment that the Appellant did not prove any non-compliance with the provisions of the Electoral Act, 2010 (As Amended) to warrant the Tribunal nullity the election of Demsa/Numan/Lamurde Federal Constituency of Adamawa State held on the 23rd February, 2019.- (Distilled from Ground Four of the Grounds of Appeal).
3. Whether the trial Judges had properly considered both the oral and documentary evidence adduced before them evaluate, weight (sic) and ascribe probative value to the evidence before arriving at the decision.- (Distilled from Ground Two of the Grounds of Appeal).
4. Whether the judgment of the trial Tribunal is based on the evidence adduced before the Honourable Tribunal.- (Distilled from ground Three of the Grounds of Appeal).
5. Whether the trial Judges were right to pronounced (sic) in their judgment that the breach of the Regulations and Guidelines for the conduct of Election and Manual for Election Official, 2019 did not amount to non-compliance with the provisions of the Electoral Act, 2010 (As Amended).- (Distilled from Ground Five of the Grounds of Appeal.
6. Whether the testimonies of the Appellants? witnesses particularly PW2, PW3, PW4 and PW7 amount to hearsay evidence. ? (Distilled from Ground Six of the Grounds of Appeal).
The 1st Respondent distilled the following two issues for determination:
Issue No. 1: Whether the Tribunal was right when it held that the Appellants failed to prove the allegations of non-compliance with the Electoral Act, 2010 (as amended) which they made in their Petition. (Distilled from Grounds 1, 4 and 5).
Issue No. 2: Whether the Tribunal failed to evaluate the evidence of the witnesses called by the parties and erred in holding that the evidence of PW2, PW3, PW4, PW7 was hearsay evidence. (Distilled from Grounds 2, 3 and 6).
The 2nd Respondent also submitted two issues for determination which are reproduced immediately hereunder:
ISSUE ONE
Whether the trial judges were right to have held in their judgment that the Appellants did not prove any non-compliance with the provisions of the Electoral Act, 2010 (As Amended) to warrant the Tribunal nullify the election into Demsa/Numan/Lamurde Federal Constituency of Adamawa State held on the 23rd February, 2019.
(Distilled from Grounds one, four and five of the grounds of Appeal).
ISSUE TWO
Whether the trial judges had properly considered both the oral and documentary evidence adduced before them, evaluate, weight (sic) and ascribed probative value to the evidence before arriving at their decision.
(Distilled from grounds Two, Three and Six of the Grounds of Appeal).
The 3rd Respondent adopted the issues formulated by the Appellants.
Appellants filed Appellants? Reply Brief of Argument to the 1st and 2nd Respondents? Briefs of Argument on 7/10/2019. They also filed Appellants? Reply Brief of Argument to the 3rd Respondent?s Brief of Argument on 12/10/2019.
I prefer the issues formulated by the 1st Respondent. I will therefore determine the appeal on those two issues.
Arguing the appeal, learned counsel for the Appellants submitted that the Tribunal acted in error when it held that the Appellant did not prove any act of non-compliance with the provisions of the Electoral Act.
That the Tribunal also acted in error when it held that a breach of the Regulations and Guidelines For The Conduct of Election and Manual for Election Officials 2019 did not amount to a breach of the Electoral Act, 2010 (as amended). It was submitted that the Regulations and Guideli
