MUHAMMADU BUHARI v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/12855(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of March, 2019
CA/EPT/PRE/1/M2/2019(R)
RATIO
PETITION: ELECTION PETITION
“This Court had in the past considered and interpreted similar provision of the Electoral Act 2006 in the case of AREGBESOLA V. OYINLOLA (2009) 14 NWLR PT 1162 PAGE 429 AT 478-479. This Court also considered the import of Section 151 of the Electoral Act 2010 (as amended) in the cases of: AKINTAYO V. JOLAOYE & ORS (2013) ALL FWLR PT 679 PAGE 1152 AT 1171. SENATOR HOPE UZODINMA V. SENATOR OSITA IZUNASO & 18 ORS. (2015) LPELR-25661 (CA).” PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
MUHAMMADU BUHARI Appellant(s)
AND
1. INDEPENDENT NATIONAL
ELECTORAL COMMISSION (INEC)
2. ATIKU ABUBAKAR
3. PEOPLES’ DEMOCRATIC PARTY (PDP)
4. ALL PROGRESSIVES CONGRESS (APC) Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Lead Ruling):
By his application, dated and filed the 12th day of March 2019 the applicant prays this Court for the following orders:
“1. AN ORDER of this Honourable Court granting leave to the Applicant to bring this application before the Pre-Hearing Session.
2. AN ORDER of this Honourable Court directing the 1st Respondent (INEC) whether by its Chairman, Commissioners, officers, agents and officials to, from the day of the grant of this application, allow the applicant, either by himself or his agents, servants or representatives have access to and inspect, as well as obtain Certified True Copies (for the purpose of defending any election petition arising from his declaration by the 1st respondent as the winner/returned candidate at the presidential election held on 23rd February, 2019) of all polling documents, Forms, electoral materials in the custody or possession of the Independent National Electoral Commission, including but not limited to:
i. Forms EC8AVP, EC8As, EC8Bs, EC8Cs, EC8Ds, EC8Es, EC40A, EC60 and every other electoral Form or document used and applied during the presidential election held on 23rd February, 2019, at all the Polling Units, Wards, Local Governments, States and the Federal Capital Territory, Abuja;
ii. All ballot papers (used, unused, recorded as spoilt and also tendered), including rejected ballots and their stubs, used in the conduct of the presidential election held throughout Nigeria on 23rd February, 2019, in all the Polling Units, Wards, Local Governments, States and the Federal Capital Territory, Abuja;
iii. All Voters Registers used and applied or relied on for the conduct of the presidential election held throughout the country on 23rd February, 2019.
3. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.
The grounds upon which this application is brought are:
A. Presidential election was conducted by INEC across the country on 23rd February, 2019.
B. The applicant herein was declared and duly returned by the Independent Electoral Commission (1st respondent) as the winner of the said presidential election.
C. Applicant seeks the reliefs sought in the body of the application to enable him defend any petition that may be brought against him as a result of his return.
D. All Forms, documents and materials used for the conduct of the said presidential election are in the custody of INEC.”
The application was brought pursuant to Section 6 (6) (a) & (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections 137 (2) and 151 of the Electoral Act, 2010, (as amended), Paragraph 47 (1), of the First Schedule to the Electoral Act, 2010 (as amended), and under the inherent jurisdiction of this Honorable Court.
Mr. Adelani Ajibade, learned counsel to the applicant, informed the Court that there are two prayers being sought by the applicant as produced herein before. He relied upon the grounds upon which the application is brought and relied on the entire paragraphs of the affidavit in support the Application.
The learned counsel to the applicant also relied on the written address in support of the application. He relied on Section 151 (1) and (2) of the Electoral Act 2010 (as amended) and referred us to our earlier order granted by us on 6th March 2019 in favour of the 2nd and 3rd respondents. He referred to the case of SBM SERVICES LTD. V. OKON (2004) 9 NWLR PT. 879 PAGE 529 and AREGBESOLA V. OYINLOLA (2009) 14 NWLR PT 1162 PAGE 429 as empowering us to exercise our discretion in favor of the applicant. He moved in terms of the application and urges us to grant same.
Now Section 151 of the Electoral Act 2010 (as amended) provides as follows:
(1) An order for an inspection of a polling document or an inspection of a document or any other packet in the custody of the Chief National Electoral Commissioner or any other officer of the Commission may be made by the election tribunal or the Court if it is satisfied that the inspection is required for the purpose of instituting, maintaining or defending an election petition.
(2) A document other than a document referred to in subsection (1) of this section relating to an election and which is retained by the Chief National Electoral Commissioner or any other officer of the Commission in accordance with this section shall be open for inspection on an order made by the Election Tribunal or a Court in exercise of its powers to compel the production of documents in legal proceedings.
This Court had in the past considered and interpreted similar provision of the Electoral Act 2006 in the case of AREGBESOLA V. OYINLOLA (2009) 14 NWLR PT 1162 PAGE 429 AT 478-479.
This Court also considered the import of Section 151 of the Electoral Act 2010 (as amended) in the cases of:
AKINTAYO V. JOLAOYE & ORS (2013) ALL FWLR PT 679 PAGE 1152 AT 1171.
SENATOR HOPE UZODINMA V. SENATOR OSITA IZUNASO & 18 ORS. (2015) LPELR-25661 (CA).
We have perused the Nine (9) paragraphs supporting affidavit and the written address of the learned counsel in support of the application together with the prayers sought on the motion paper. I am of the view that the prayers ought to be granted.
It is hereby ordered as follows:
1. Leave is granted the applicant to bring this application at this stage.
2. The 1st Respondent shall forthwith allow the applicant and/or his representatives to inspect polling documents and obtain certified true copies of all polling documents in the custody of the 1st Respondent used for the just concluded presidential election to enable the applicant defend any petition arising from his declaration by the 1st Respondent as the winner/returned candidate at the said presidential election held on the 23/2/2019.
And that shall be the order of the Court on the applicant’s application.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
Adelani Agibade with him, Kolawole Aro, Bisola Omotosho, Oghenetejiri Gbemre and Ayodeji OlatuboraFor Appellant(s)
For Respondent(s)
