OLUWAROTIMI O. AKEREDOLU & ANOR V. RAHMAN O. MIMIKO & ORS
(2013)LCN/6370(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of July, 2013
CA/AK/EPT/GOV/07/13
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. OLUWAROTIMI O. AKEREDOLU, SAN.
2. ACTION CONGRESS OF NIGERIA (ACN) Appellant(s)
AND
1. RAHMAN O. MIMIKO
2. LABOUR PARTY (LP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
THE GROUNDS FOR QUESTIONING AN ELECTION
The grounds for questioning an election are eloquently stated in Section 138(1)(b) of the Electoral Act, 2010, as amended. It includes “non-compliance with the provisions” of the Electoral Act. The Electoral Act is the only enabling statute for compilation and use of the Voters’ Register. By dint of Section 138 (1) (b) of the Electoral Act, where it is alleged that the Voters Register, used in the election the subject of the Petition, was improperly compiled or not properly compiled in compliance with the Electoral Act, and that it was done to give undue advantage to one of the parties, and that the Voters Register was used to conduct the election; then I think, in my humble view, that Section 138 (1) (b) Electoral Act, 2010 has been invoked. By the said Section 138 (1) (b) of the Act, therefore, the election Tribunal, including the instant Tribunal, has jurisdiction to entertain such a complaint. After all compliance, as stated by I. T Muhammed J.S.C in OJUKWU v. YAR’ADUA (2009) 12 NWLR (Pt.1154) 50 at page 140 B – C is ordinarily “an act of complying or acting in accordance with wishes, requests, commands requirements, conditions or orders. It is an act of yielding or conformity with the requirements or orders”. The learned jurist then concludes that where there is non-compliance, it postulates reversal of such definitions. PER EKO, J.C.A.
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): On 20th October, 2012, The Independent National Electoral Commission (INEC), the 3rd Respondent in this appeal conducted Governorship Election in Ondo State. The 1st Appellant, a candidate sponsored by the 2nd Appellant, Action Congress of Nigeria (ACN), contested the election with other candidates, including the 1st Respondent, Dr. Rahman O. Mimiko, who was sponsored by the 2nd Respondent, the Labour Party (LP). On 21st October, 2012 INEC declared and returned the 1st respondent as the winner of the election.
Dissatisfied with the declaration and/or return of the 1s Respondent by the INEC the Appellants filed their petition challenging the return of the 1st Respondent on 9th November, 2012 at the Governorship Election Tribunal sitting at Akure, Ondo State (hereinafter called “The Tribunal). The Petition is at pages 1 – 150 of the Record.
The Respondents filed their respective replies to the petition. The Reply of the 3rd Respondent at pages 276-342 of the Record, was filed on 30th November, 2012. The 2nd Respondent filed its Reply on 3rd December, 2012. It is found at pages 343 – 387 of the Record. The reply of the 1st Respondent is at pages 389 -589 of record. It was filed on 10th December, 2012.
At the close of the pleadings the Petition went into trial before the Tribunal. The Appellants called a total of 41 witnesses, including two expert witnesses. The 1st Respondent called 14 witnesses. The 2nd and 3rd Respondents called no witnesses. The counsel for the respective parties, at the close of the evidence, filed and exchanged their respective written Addresses, which they later adopted as their arguments in the Petition. In its considered judgment delivered on 3rd May, 2013, the Tribunal dismissed the Petition in its entirety; hence this appeal.
The Appellants filed a total of 38 Grounds of Appeal in the Notice of Appeal copied at pages 1775 – 1796 of Vol. 3 of the Records.
Briefs were filed and exchanged by the parties through their Counsel. The Appellants’ main brief was filed on 4th June, 2013. In addition the Appellants filed Reply Briefs in response to the briefs filed, each, by the 1st, 2nd and 3rd Respondents. The three Reply Briefs were filed on 12th June, 2013. These briefs and the main Appellants Brief were all adopted as the arguments/submissions of the Appellants in the appeal on 25th June, 2013 at the hearing of the appeal.
The 1st Respondent’s Brief, filed on 7th June, 2013, was adopted as the argument of the 1st Respondent in the appeal. Before then, the 1st Respondent had, on 7th June, 2013, filed Notice of Preliminary Objection wherein a number of the Appellants’ grounds of appeal were attacked. The Preliminary Objection was argued in the 1st Respondents Brief. Chief Wole Olanipekun, SAN moving the preliminary objection had urged us to strike out the defective grounds of appeal, the particulars in some of the grounds of appeal and the issues formulated for determination of the appeal wherein the defective grounds were included. Chief Akin Olujinmi, SAN of Counsel to the Appellants, relying on the S.P.D.C. V. AMADI (2011) 6 SCM 183 at page 196, in response, submitted that preliminary objections are filed against the hearing of the appeal, with the view and aim of terminating same; and that when there are other grounds which can sustain the appeal the proper procedure is to come by way of motion on notice praying for an order striking out the defective grounds of appeal. Notwithstanding the vehement opposition of Chief Olanipekun, SAN, on the ground that Order 10 Rule 1 of the Court of Appeal Rules, 2011 does only provide for the respondent to file preliminary objection, and not the other way round, I am in complete agreement with Chief Olujinmi, SAN on this. If the Notice of Preliminary Objection is a process in the appeal and it is for any reason, on points of law, not one that can be countenanced; then it could be objected to. I need not belabor the issue. The Supreme Court in S.P.D.C V. AMADI (Supra) at page 196 has settled the issue when per Rhodes-Vivour, it states the law thus:
Preliminary objections are against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of appeal should be filed.
This statement of law, in view of Section 287 (1) of the 1999 Constitution, as amended, binds this court and the parties. The matter therefore, rests there. The Notice of Preliminary Objection filed by the 1st Respondent on 7th June, 2013 and argued in the 1st Respondents Brief of Argument filed also on 7th June, 2013 will not be countenanced since it purports not to terminate the entire appeal, but only some grounds of appeal in the Notice of Appeal.
The 2nd Respondents Brief, filed on 7th June, 2013, was adopted at the hearing of this appeal on 25th June, 2013 by Yusuf O. Ali, SAN as the argument of the 2nd Respondent. Dr. Onyechi Ikpeazu, SAN of Counsel to 3rd Respondent formally adopted the Brief of the 3rd Respondent, filed on 7th June, 2013 and prayed, like the counsel respectively for the 1st and 2nd Respondents, that the appeal be dismissed.
The Appellants’ Brief, filed on 4h June, 2013 containing arguments on which Chief Olujinmi SAN urged us to allow the appeal, has a total of 13 issues for determination as follows: –
“1. Whether the Tribunal was right in rejecting the expert evidence of PWs 34 and 35 and failing to rely on the Exhibits tendered by them and admitted in evidence.
(Grounds 21, 22, 23, 25, 35, 36).
2. Whether the Tribunal having held that there were injections into the 2012 Register of Voters used for the conduct of the October 20, 2012 Governorship Election was right in declining jurisdiction to consider the allegation on the use of the invalid Voters Register to conduct the 2012 Election on the pre that they were pre-election matters. (Grounds 8, 9, 11, 18 and 19).
3. Whether the evidence of improper accreditation and non-accreditation of voters during the Election placed before the Tribunal vide EXHIBITS P52A & P52b and testimony of PWs 34, 40, 41 were not cogent enough to justify the nullification of the election conducted on 20th October, 2012. (Grounds 2, 12 and 17).
4. Whether the Tribunal properly evaluated the evidence before it and came to the right conclusion particularly when no rebuttal evidence was given and several facts were corroborated by documentary and oral evidence of the 1st Respondent witnesses (Grounds 4, 5, 6 and 38).
5. Whether failure of the Tribunal to properly review the evidence and evaluate it before making its findings has not engendered serious miscarriage of justice. (Grounds 20, 28 and 29).
6. Whether the evidence on record did not sufficiently establish allegations of irregularities and various acts of non-compliance with the Electoral Act and regulations made pursuant thereto to justify nullifying the election in dispute (Ground 3).
7. Whether the Tribunal was not wrong when it failed to hold that the petitioners through the evidence led have met the standard of proof required to establish the allegations contained in the petition. (Grounds 31 and 32).
8. Whether having regard to pleadings, the evidence and the law, the petitioners have not discharged the burden of proof placed on them. (Grounds 10 and 14).
9. Whether the Tribunal was right in its application of the decision of the Court of Appeal to discountenance and expunge evidence already properly admitted by it (Grounds 7 and 16).
10. Whether the Tribunal was right to have discountenanced evidence relating to the paragraphs of the petition struck out having previously held that the petition would be heard on its merit and in any case having regard to the paragraphs of the respondents’ replies which accommodated the evidence. (Grounds 1 and 30).
11. Whether the Tribunal was right in dismissing the petition when the copious evidence led by the petitioners’ witnesses was neither rebutted nor challenged, (Grounds 13, 24, 26 and 33).
12. Whether in the light of its earlier holding that the petitioners did not dump documents on the tribunal, the materials on record and the law, the tribunal was right when it later held that some documents were dumped on the tribunal and that the petitioners did not demonstrate the electronic copies of 2011 and 2012 voters registers. (Grounds 15, 27 and 34).
13. Whether in the light of the pleadings of the parties, the evidence led by the petitioners and the failure of the 3rd respondent to give any evidence, the Tribunal was not wrong in the way it considered the issue relating to the injected voters. (Ground 37).”
On the otherhand, the 1st Respondent at pages 6 & 7, particularly paragraph 3.1 of his brief formulated two issues for determination. They are:
“(1) Whether the lower tribunal was not right when it relied on its own earlier decision of 4th February, 2012″ which has been affirmed by the Court of Appeal in appeal number: CA/AK/EPT/GOV/04/13, in discountenancing paragraphs 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 45, 46, 48, 49, 51, 55, 71, 80, 81, 85, 86, 87, 88, 91, 146, 149 and 181 of the Appellants” Petition, as well as the evidence led in support thereof (Grounds 1, 7, 16 and 30),
(2) Considering the grounds of the Appellants’ Petition, the extant state of the pleadings and the evidence in support thereof vis-a-vis the state of the law on the burden and standard of proof as well as the reliefs sought in the Appellants’ Petition, whether the trial tribunal was not right in dismissing the Appellants’ petition and affirming the election and return of the 1st Respondent (Grounds 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 27, 29, 31, 32, 33, 34, 35, 36, 37 and 38).”
The 2nd Respondent has distilled three issues for determination. They are as follows in paragraph 3.00 at page 3 of the said brief:
“1. Whether the trial Tribunal was not right in its conclusion that the Appellants did not prove improper or non-accreditation, improper voting, non-compliance with the provisions of the Electoral Act, and sundry other allegations made by them, and that the election was held in substantial compliance with the provisions of the Electoral Act, 2010 (as amended).
2. Whether the trial Tribunal was not right in its view that the testimonies of PWs 34 and 35, apart from being incredible or unbelievable, will not qualify as expert testimonies, having regard to the facts and circumstances of the case, moreover, when the testimonies did not prove the allegation of injection of fresh or illegal names into the voters’ registers, on which the Tribunal had no jurisdiction.
3. Whether the trial Tribunal was not right that the Appellants failed to prove the various allegations of electoral malpractices in the conduct of the Ondo State Governorship elections of 20th October, 2012.”
For the 3rd Respondent the three issues formulated for determination of the appeal are at page 7 thereof as follows:
“1. Whether the Learned Tribunal rightly rejected the testimony of PW34 and PW35 and their respective reports in Exhibits P55 ….
2. Whether the learned Judges of the Tribunal were right to have held that issues bothering on the state of the voters register of 2011 as compared to that of 2012 are pre-election matter covered by Section 31(5) of the Electoral Act 2010 and totally outside the jurisdiction of the Honourable Tribunal.
3. Whether in the light of the pleadings of the parties and the evidence on record, the learned Tribunal was not right to have dismissed the Appellant’s Petition.”
I have read all the briefs of argument and the proceedings of the Tribunal, including the pleadings and the judgment. In my humble view the issues for determination in this appeal are: –
1. Whether the Tribunal was right to have held that issues bordering on the contents of the Voters Register are pre-election issues and therefore not within its jurisdiction?
2. Whether the Tribunal was right to have held that the Appellants did not prove that the Ondo State Governorship Election of 20th October, 2012 was not conducted in substantial compliance with the letters and spirit of the Electoral Act, 2010, as amended?
3. Whether on the pleadings and evidence of all the parties the Tribunal was right to have dismissed the Petition?
The Tribunal, at pages 3113 – 3114 of Volume 4 of the Records, found “as a fact that the 2nd Petitioner (Appellant) was given the 2012 Voters Register on the 20th of September, 2012, as stated by PWs. 4, 5, 23 and 40” and thereafter stated:
Having got the 2012 Voters Register about one month before the election took place we agree with the 1st Respondent that all issues relating to the Voters Register 2011 as compared to the one of 2012 are purely pre-election issues over which the Tribunal vide Section 131 (5) of the Electoral Act (over which this Tribunal) has no jurisdiction. See OLUYENNI v. ASHAOLU (2010) All FWLR (Pt.522) 682 and IBRAHIM V. INEC (Supra).
A distinction must, however, be drawn between the 2012 Voters Register which as we have held is a Pre-election matter and its use as at the October 20, 2012 election, a fact within our jurisdiction. Put differently, if the Petitioner chose to ignore the injunctions in the Voters Register as they did rather than challenge it before the Ondo State High Court or the Federal High Court, they can only complain before us of any electoral malpractice in the election using the Voters Register during the election and not before. To that extent the evidence of Pws 34 and 35 propelled on Exhibits P52 (A & B) and P5, P56 and P57 (A1 – A20) attempting to analyse the Voters Register will be irrelevant. The irregularities in the 2012 Voters Register were known to the Petitioners about one month before the election took place. If they felt the Register was/is for the reasons they state invalid, they ought to have challenged it before the appropriate Court. They cannot come before us to seek
a nullification of the Register and by extension the election due to the injections in it. It is a different matter if they are able to prove that the illegal or injected voters voted.
Estoppel by conduct, under Section 169 of the Evidence Act, 2011 seems to be the prop of this reasoning of the Tribunal.
It is trite to state that parties are bound by their pleadings. The Petitioners now Appellants, pleaded that what the INEC gave them when they complained that attempts were being made to inflate the Voters Register by injection of illegal registrants was the soft copies of the Voters Register which they could not open, because they had no soft ware to do so. INEC, the 3rd Respondent, admitted in paragraph 19 (viii) at page 287 of their Reply that “at the meeting on the 20th September, 2012, soft copies of the Register of Voters containing 1,654,205 names of registered voters in all the 18 Local Governments of Ondo State, were given to representatives of all the political parties.” INEC further pleaded in paragraph 19 (x) “that it is impossible for any 3rd party or any unauthorized person to access its data.” On the state of the pleadings, on this particular issue, it is perverse, as held by the Tribunal that “irregularities in the Voter Register were known to the Petitioners about one month before the election took place.
The Electoral Act 2010, as amended, by its Section 19 (1) enjoins INEC to display for public scrutiny for a period of not less than 5 days and not more than 14 days “and during which period any objection or complaint in relation to the names omitted or included in the Voters’ Register or in relation to any necessary correction, shall be raised or filed”. There is no evidence that INEC complied with statutory commandment. There is however overwhelming evidence that INEC used this Voter Register in the Election. My understanding of the provisions of Section 19 (1) of the Electoral Act, particularly the words “display for public scrutiny” is that the National Assembly intended that it is the hard copies or printed copies of the Voter Register that should be published by displaying same in a public place (s) for viewing and/or scrutiny. This, of course, excludes giving soft copies that can neither be opened nor accessed by the representatives of political parties. Transparency is obviously the main objective of the provisions of Sections 19 and 20 of the Electoral Act.
The only reason the Tribunal discountenanced “the evidence of PWs 34 and 35 propelled on Exhibits P52 (A & B) and P55, P56 and P57 (A1 – A20)” at page 3114 of the Record is the perverse finding that the Petitioners had knowledge of the contents of the Voters Register at least one month before the election. There is no evidence that the contents of the Voters Register in its soft copy were known to the Petitioners. There is also no evidence that copies of the Voters Register were displayed for public scrutiny, as directed by the Electoral Act. In the similar view there is no evidence that the printed or hard copies of the Voters Register were made available to the Petitioners to justify or warrant the finding by the Tribunal that they were aware of its contents one month before the election.
It appears to me that what the Tribunal has stated at pages 3113 – 3115 of the Records, in its judgment, is what while the making of the Voters’ register is a pre-election issue; the use made of its contents is a post-election issue. That is what I think the Tribunal means by the statement:
A distinction must, however, be drawn between the state of the 2012 Voters Register, which as we have held is a pre-election matter and its use at the October 20, 2012 election, a fact within our jurisdiction.
The grounds for questioning an election are eloquently stated in Section 138(1)(b) of the Electoral Act, 2010, as amended. It includes “non-compliance with the provisions” of the Electoral Act. The Electoral Act is the only enabling statute for compilation and use of the Voters’ Register. By dint of Section 138 (1) (b) of the Electoral Act, where it is alleged that the Voters Register, used in the election the subject of the Petition, was improperly compiled or not properly compiled in compliance with the Electoral Act, and that it was done to give undue advantage to one of the parties, and that the Voters Register was used to conduct the election; then I think, in my humble view, that Section 138 (1) (b) Electoral Act, 2010 has been invoked. By the said Section 138 (1) (b) of the Act, therefore, the election Tribunal, including the instant Tribunal, has jurisdiction to entertain such a complaint. After all compliance, as stated by I. T Muhammed J.S.C in OJUKWU v. YAR’ADUA (2009) 12 NWLR (Pt.1154) 50 at page 140 B – C is ordinarily “an act of complying or acting in accordance with wishes, requests, commands requirements, conditions or orders. It is an act of yielding or conformity with the requirements or orders”. The learned jurist then concludes that where there is non-compliance, it postulates reversal of such definitions.
In tandem of this simple definition of compliance or non-compliance, it is my view that an election conducted using Voters Register not compiled in accordance with or in compliance with the provisions of the Electoral Act will, in the circumstance, fall within the jurisdiction of the Election Tribunal under Section 138 (1) (b) of the Electoral Act, 2010, as amended. The National Assembly, through the Electoral Act, has not given the Independent National Electoral Commission (INEC) free hand or powers to conduct elections any how or in any arbitrary and capricious manners. All powers vested in INEC to conduct elections, including compilation of Voters Register, are circumscribed and must be exercised in compliance with the Electoral Act.
The Supreme Court, the majority view, held in OJUKWU v. YAR’DUA (Supra) that non-compliance without more may not be sufficient to invalidate an election. One of the issues in that case is a declaration that the arbitrary failure of INEC to display copies of the Voters register in the manner and form commanded by the Electoral Act, 2006. The Presidential Election Tribunal entertained the petition and dismissed it on the merits. There is a similar issue in the petition, the subject of this appeal. In my humble view the Tribunal, in the instant appeal, was ‘ not right when it held that it has no jurisdiction to entertain issues bordering on non-compliance of the Voters Register with the Electoral Act. The register, criticized for its non-compliance with the Act, was used in the election.
For the record the complaint of the Petitioners in this appeal are twofold, viz:
i. That the registration/injection of more names into the Voters Register was done secretly or surreptitiously and that it was not publicized, and
ii. that the Voters Register to be used in the October 20, 2012 was not displayed or published for public scrutiny as required by Sections 19(1) and 20 of the Electoral Act, 2010.
It should be noted that the Petitioners are not questioning the powers of INEC, under the Electoral Act, to continually update the Voters Register.
The law is now settled that a Petitioner who challenges the election of a respondent, as this 1st Respondent, on ground of non-compliance with the provisions of the Electoral Act must plead not just the fact of the alleged noncompliance, he must go further to plead that the non-compliance had substantially affected the result of the election. See OJUKWU V. YAR’ADUA (Supra) at (Pt. 910) 241; YUSUF v. OBASANJO (2005) 18 NWLR (Pt. 956) 96.
I do not think that there is any dispute about the figures.
i. total number of registered voters in the 2011 Voters Register is put at 1,553,580
ii. total registered voters in the 2012 Voters Register were 1,654,205.
iii. the difference between figures in (i) & (ii) above is 100, 725.
These undisputed figures are the bench mark.
The Appellants submit that the PW.35, through his Exhibits P56 and P57, established that over 164,072 were unlawfully injected into the 2012 Voters Register. If the balance of 100,725 is, arithmetically, the difference between 1,654,205 and 1,553,580 figures in 2012 and 2011 Voters Registers respectively, then the calculation of PW.35, the expert, appears preposterous, outlandish and perverse. The wise Counsel in FAYEMI V. ONI (2009) 7 NWLR (Pt.1140) 223, as rightly submitted by Chief Olanipekun SAN of counsel to the 1st Respondent is worth heeding to. At Pages 276 – 277 of the Report the admonition goes thus: –
The court must be wary of admitting a report prepared by an expert, not at the instance of the court but at the behest of any of the parties to the dispute. Such a report must be taken with a pinch of salt “(See WAZIRI V. THE STATE (1997) 3 NWLR (Pt.496) page 689).
The PW.35 was seriously discredited by the cross-examination of 3rd Respondent’s Counsel. The PW.34, who also under cross-examination, had admitted that he was briefed, upon a fee, “to look for evidence to sustain the petition that was already filed” was rightly dismissed as not being credible objective expert witness whose evidence would be of any assistance to the Tribunal. The evidence and reports of these two witnesses, PWs 34 and 35, were intended to prove that the non-compliance of INEC with in Electoral Act, in the compilation and use of the 2012 Voters Register, had substantially affected the outcome or the result of the election conducted on 20th October, 2012. The findings of fact by the Tribunal that the PWs 34 and 35, and their reports are unreliable are findings that the appellate court does not readily interfere with, unless they are perverse. In the instant case the findings are not perverse as the printed evidence show. The Tribunal had adroitly evaluated the evidence of these two expert witnesses. The same manner of evaluation of evidence was done as regards other witnesses on the sundry acts of non-compliance complained of.
The Appellants in paragraphs 7.05 and 7.06 at Pages 27 – 28 of their brief submitted that “since the Tribunal found that there were unlawful injections, the effect ought to have been a total invalidation and nullification of the Voters Register and the Election conducted thereon”. The law, as I stated earlier, is: it is not enough to plead and prove non-compliance with the provisions of the Electoral Act; the Petitioner is further enjoined to plead and prove that the non-compliance alleged had substantially affected the outcome or result of the election: OJUKWU v. YAR’ADUA (Supra); BUHARI V. OBASANJO (Supra); YUSUF v. OBASANJO (Supra). The Appellants have not proved how the non-compliance by INEC, in the compilation of the Voters Register and its use in the 20th October, 2012 election had substantially affected the outcome of the said election. The Election Act deliberately directs Tribunals and Courts in election matters not to disturb returns made, unless non compliance with the Act has substantially affected the result of the election and the return. See Section 139 (1) of the Act.
There were other allegations of none or improper accreditation, over-voting, plural voting, and sundry electoral malpractices and non-compliance. I repeat that it is not enough to adumbrate these facts that tend to establish that the election was not conducted in a free and fair manner as directed by the Electoral Act. The Petitioner who alleged all these acts of electoral malpractices has the additional burden of pleading and proving that these malpractices did in fact impact substantially on the final outcome of the election. Section 139 (1) of the Electoral Act, 2010, as amended is very clear when it provides:
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 provisions of this Act and that the non-compliance did not substantially affect the result of the election.
The discretion vested in the Tribunal or Courts by this provision is judicial; which discretion has to be exercised judicially and judiciously.
The law reports are now replete with statements of our superior Courts espousing the law as in Section 139 (1) of the Electoral Act, 2010. They are all to the effect that the non-compliance must be shown to have substantially affected the result of the election. See AJADI V. AJIBOLA (2004) 16 NWLR (Pt. 898) 91 at 170 – 171; ADEBIYI v. BABALOLA (1993) 1 NWLR (Pt.267) 1; BUHARI V. INEC (2009) All FWLR (Pt.459) 419 at 525; etc. The most recent on this by the Supreme Court, interpreting Section 139 (1) of the Electoral Act, 2010, is CPC v. INEC (2011) 18 NWLR (Pt 1279) 493 at 544 – 545, 573 – 574. Since failure, to prove this vital or material fact is very fatal to any election petition, one expects Petitioners and their Counsel, when formulating or settling election petitions, to be very conscious of this charge to Election Tribunals or courts under Section 139 (1) of the Electoral Act, 2010 an amended, and/or its equivalent provisions in other statutes. It does not help the judicature and the course of justice for Petitioners to rush to Court to challenge the election or return therefrom on grounds of non-compliance without seriously addressing the issue of the non-compliance not substantially affecting the outcome of the election. The Court are quite congested by flimsy election petitions.
From all I have demonstrated above my inescapable conclusion is that from the pleadings and the totality of the evidence the Tribunal was not right in declining jurisdiction on the issue of the validity of the 2012 Voters Register that has allegedly not compiled in accordance or compliance with the provisions of the Electoral Act, 2010, as amended. However, on the pleaded facts and evidence the various acts of non-compliance with the Electoral Act, 2010 orchestrated in the petition have not been shown to have substantially affected the outcome of the election.
Section 168 (1) of the Evidence Act, 2011 provides that when a judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. This presumption, rebuttable though, enures in favour the judgment of the Tribunal appealed. The burden is on the Appellant to show that the judgment appealed is a travesty of justice. These Appellants have not shown how the judgment appealed had occasioned substantial injustice or miscarriage of justice to them in the light of the facts and the prevailing circumstances of the extant Electoral Act, 2010. Apart from the Tribunal wrongfully declining jurisdiction on the issue whether the Voters Register used in the election was valid in law and in compliance with the Electoral Act, 2010 it is my firm view that the Tribunal correctly exercised its discretion to dismiss the Petition No. EPT/GOV/02/2013 filed by the Appellants herein.
All the findings of fact on non-accreditation, over voting, and the sundry acts of electoral malpractices pleaded by the Appellants, as the Petitioners, were made upon painstaking and scrupulous evaluation of the evidential materials on them. Upon these proper evaluations of facts, as done by the Tribunal, the findings of the Tribunal on the issues of non-accreditation, corrupt practices, and the sundry acts of electoral malpractices cannot be faulted. It is of course trite that an appellate court will not readily interfere with findings of fact made upon proper evaluation, unless the findings are perverse. It is on this trite principle of law and practice that I refuse to disturb those findings.
Chief Olanipekun, SAN of Counsel for the 1st Respondent seemed to have suggested that the 1st Appellant, himself, was a beneficiary of the acts of indiscretion or illegal injection of names or registrants into the 2012 Voters Register. The 1st Appellant was the candidate sponsored by the 2nd Appellant in the election. The blanket allegation of illegal injection of names into the register without complying with Sections 19 and 20 of the Electoral Act, 2010 would seem to make the Appellants in pari delicto in the very acts they complain of against the INEC, the 3rd Respondent, in this appeal. According to the Senior Counsel for 1st Respondent this is a case of a pot calling a kettle black. I leave this judgment at that without any further comments of mine.
I make no order as costs.
MOHAMMED LAWA GARBA, J.C.A.: I agree.
ADZIRA GANA MSHELIA, J.C.A.: I agree.
OBIENTONBARA DANIEL-KALIO, J.C.A.: I agree.
EMMANUEL AKOMAYE AGIM, J.C.A.: I agree.
Appearances
Chief Akin Olujinffii, CON, SAN, leading., Lasun Sanusi, SAN; S. A. Orkumah Esq., Wole Aina Esq., Kazeem A. Gbadamosi, Esq., Kunle Sobaloju, Esq., Seun Abimbola, Esq., Ayodele Adedipe, Esq., Oluwagbenga Olatunji, Esq., Bolaji Agoro, Esq., Benson Aderosin, Esq., Akinyemi Olujinmi, Esq., Victor Olatoyegun, Esq., Sunday Aborisade, Esq., V. B. Olagbegi-Aloba (Mrs.), Adegbemile H. Kayode, Esq. Funso Aragbade, Esq., Adeoye Abdulrasak, Esq., Bola Alibi, Esq., Emmanuella Adams (Mrs.), Matthew Bada, Esq., Aregbesola D. Ajibola (Miss); Bode Famakin, Esq.For Appellant
AND
Chief Wole Olanipekun, OFR SAN, leading., Ricky Tarfa, SAN, Adebayo Adenipekun, SAN, John Baiyeshea, SAN, Abiodun Owonikoko, SAN, Abayomi Akamode, Esq., Kunle Ijalana, Esq.
Abimbola Ajileye-George, Sesan Dada, Olumide Ogunje, Akeem Olaniyan, Thompson Akinyemi, Y. A. Dikko, Olabode Olanipekun, Wole Okenile, Adedayo Adesina, Kingsley Jephter, Oyebanji Oluwatobi, Duduyemi Ajewole, Stella Udu – for the 1st Respondent.
Yusuf O. Ali, SAN, leading; A. O. Adelodun SAN., Prof. Wahab Egbewole, Ayo Olanrewaju, Esq., K. K. Eleja, Esq., R. O. Balogun, Esq., A. O. Abdulkadiri, Esq., A. S. Abdullahi, Esq., Taofiq Alubarika, Esq., Hammad Muhammad, Esq., Idris Suleiman Esq. – for the 2nd Respondent.
Dr. Onyechi Ikpeazu SAN, leading; Onyinye Anununye, Esq., Wale Balogun Esq., Chioma Wokeocha (Mrs.); Ayotunde Ogunleye, Esq.; Peter Nwatu, Esq. – for the 3rd Respondent.For Respondent
