I.N.E.C v OTTI & ORS

I.N.E.C v OTTI & ORS


IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, 26TH FEBRUARY, 2016


Appeal No: SC.22/2016
CITATION:

Before Their Lordships:

MAHMUD MOHAMMED, J.S.C.

IBRAHIM TANKO MUHAMMAD, J.S.C.

SULEIMAN GALADIMA, J.S.C.

OLABODE RHODES-VIVOUR, J.S.C.

KUMAI BAYANG AKA’AHS, J.S.C.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

CHIMA CENTUS NWEZE, J.S.C.


BETWEEN

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

(APPELLANT)

AND

ALEX OTTI
ALL PROGRESSIVES GRAND ALLIANCE (APGA)
OKEZIE VICTOR IKPEAZU
PEOPLES DEMOCRATIC PARTY (PDP)

(RESPONDENTS)


PRONOUNCEMENTS


A. ELECTORAL MATTERS
1. Independent National Electoral Commission – Duties of the Independent National Electoral Commission in election matters

“My lords, permit me to make this comment in the light of what has been the recent trends of events in respect of the stance of the Independent National Electoral Commission (INEC). In an election petition they readily take over the case of a party who lost at the Court below to prosecute the appeal. This appeal is one such example. Is “INEC” not expected to be neutral and discharge its statutory responsibility in all election matters? Does it want to cry itself hoarse more than the bereaved?” Per GALADIMA, J.S.C. (para 5) read in context

2. Card Readers – Statutory position on Card Readers

As I stated in SC.18/2016 that until Section 49 of the Electoral Act is amended to bring in the process of electronic voting, the manual voters register will continue to play a prominent role in ascertaining whether there was over-voting or not by its production and comparing it to the number of those accredited to vote and those who actually voted. It is only then that the information captured in the smart card reader can be used to establish the actual number of persons who voted in the election. Per AKA’AHS, J.S.C. (para 2) read in context

B. APPEAL
3. Notices of Appeal – Content required of a standard Notice of Appeal

“The Appellant’s preliminary objection is predicated on a number of grounds specified in paragraph 4.2 of its brief. In short, that the Notice of Appeal was in flagrant non-compliance with Order 6 Rule 2 (1) of the Court of Appeal Rules 2011. I agree with the learned Senior Counsel for the 1st and 2nd Respondents that the submissions of the Learned Senior Counsel from the Appellant on this point is not the true position of the law. I have carefully perused the provision for Order 6 Rule 2 (1) (supra) reproduced by the Appellant herein in its brief which provision is held out as being mandatory. The Order mandate only decisions appealed against to be reproduced where an appellant appeals only in respect of or against such decision. The Notice of Appeal as filed by the 1st and 2nd Respondents herein at the lower Court reveals that they carefully identified and emphasized that part of the decision of the Court below they were appealing against without being ambiguous or vague in their total 30 Grounds of Appeal. The parts of the decision of the lower Court being appealed against were clearly specified and captured thus:-

“The whole decisions EXCEPT portions thereof in favour of the Appellant”.

The word “except” as used by the Appellant (Respondents herein) clearly distinguished that part of the judgment not being appealed against. It is not the intention of the law makers that the Appellant should first set out paragraph 2 of the Notice of Appeal the entire areas of decision complained about running into several pages and then proceed to paragraph 3 to reduce those several pages into Grounds of Appeal, which will as well run into several pages depending on the number of Grounds of Appeal. The interpretation being sought by the Appellant will certainly lead to absurdity as this will mean that the rules intend to turn a Notice of Appeal into a “mini dissertation”. I do not think the Appellant was misled by the part of the decision of the lower Court being appealed against. After all the Appellant canvassed argument vehemently in opposition to the issues raised in the Respondents’ brief arising from the Grounds of Appeal filed.” Per GALADIMA, J.S.C. (para 8 – 9) read in context


LEAD JUDGEMENT DELIVERED BY SULEIMAN GALADIMA. J.S.C.


1. On Wednesday the 3rd February, 2016, this Court heard this appeal and allowed it and undertook to adduce reasons to do so today, Friday, 26th February, 2016. Here are my reasons.

2. The facts and circumstances of this appeal and those of SC.18/2016, just disposed of now, and the other appeal SC.19/2016 are the same. It would be needless to repeat the same set of facts all over in this appeal. However, it would suffice to adopt the sequence of events already set out in SC.18/2016.

3. In the brief of argument settled by the Appellant Senior Counsel, CHIEF A.A AWOMOLO, SAN, 5 issues for the determination of this appeal are as follows:-

1. Whether the Court below was not wrong in law when it dismissed the Appellant’s preliminary objection challenging the competence of the Notice of Appeal and the jurisdiction of the said Court to entertain the appeal before its Ground l.

2. Whether in the light of the pleadings of the 1st and 2nd Respondents regarding alleged electoral malpractices in the elections in some polling units in Osisioma LGA, Obingwa LGA and Isiala Ngwa North LGA and on account of which the said Respondents computed, identified, listed and summarized “invalid votes” earned there from by the 2nd and 4th Respondents respectively and which still show that the 3rd Respondent won the majority of the valid votes cast, the Court below, was not wrong in law when it held that it was the 1st Respondent who won the majority of the valid votes cast at the election? (Ground 8).

3. Whether the Courts below was not wrong in law when it held that there was over voting in Osisioma LGA, Obingwa LGA and Isiala Ngwa North LGA and consequently cancelled the results of election that emanated from the said local Government Areas and deducted the entire votes thereat from the overall results declared by the Appellant for the 1st Respondent and the 3rd Respondent respectively? (Grounds 2, 3, 4, 5, 6, 7, 9, 10, 14 and 17).

4. Whether the Court below having cancelled the results of election in Osisioma LGA, Obingwa LGA and Isiala Ngwa North LGA and discounted the votes which emanated therefrom, the said Court was right in law to have declared that the 1st Respondent won the majority of the lawful votes cast at the said election and satisfied the requirements of the 1999 Constitution and other relevant laws? (Grounds 12 and 13).

5. Whether the Court below was not wrong in law and occasioned miscarriage of justice when it held that the reliefs the 1st and 2nd Respondents sought in their petition were grantable and proceeded to grant the aforesaid Respondents their main relief and alternative relief? (Grounds 11, 15, 16, 18, 19 and 20).

4. In the 1st and 2nd Respondent’s brief settled by their Senior Counsel CHIEF AKIN OLUJINMI SAN, 5 issues formulated for determination of this appeal are as follows:-

“1. Whether the Court below was not right when it dismissed the Appellant’s preliminary objection challenging the competence of the Notice of Appeal and the jurisdiction of the said Court to entertain the appeal before it. Ground

2. Whether on the materials on the record the lower Court was wrong in holding that it was the 1st Respondent who won the majority of valid votes.

3. Whether the lower Court did not properly consider the petition and relevant materials Placed before it and rightly came to the right conclusion it declaring the 1st Respondent herein the winner of the Abia State Governorship election. Grounds 2, 3, 4, 5, 7, 8,9, 10 and 14.

4. Whether the Court below having cancelled the results of election in Osisioma LGA, Obingwa LGA and Isiala Ngwa North LGA and discounted the votes which emanated therefrom, was not right to have declared that the 1st Respondent won the majority of the lawful votes cast at the said election and satisfied the requirements of the 1999 Constitution and other relevant laws. Grounds 12 and 13.

5. Whether the Court below was not right in law when it held that the reliefs sought in the petition were grantable and proceeded to grant the reliefs as considered appropriate. Grounds 11, 15, 16, 18, 19 and 20.”

May it be noted that that 3rd and 4th Respondents did not file any brief.

5. My lords, permit me to make this comment in the light of what has been the recent trends of events in respect of the stance of the Independent National Electoral Commission (INEC). In an election petition they readily take over the case of a party who lost at the Court below to prosecute the appeal. This appeal is one such example. Is “INEC” not expected to be neutral and discharge its statutory responsibility in all election matters? Does it want to cry itself hoarse more than the bereaved? Except the first issue the Appellant herein would like us to resolve other issues that have been elaborately dealt with in my consideration of SC.18 /2016.

6. The short cut in which the Appellant wants this Appeal to be determined questions our avowed and painstaking consideration and disposal of earlier Appeals in SC.18/2016 and SC.19/2016 based on the same Notice of Appeal. The Appellant should refrain from doing things capable of impugning its integrity and impartiality.

7. Having said this at any rate I agree that the Court below was right to have dismissed the Appellant’s preliminary objections which was totally baseless.

8. The Appellant’s preliminary objection is predicated on a number of grounds specified in paragraph 4.2 of its brief. In short, that the Notice of Appeal was in flagrant non-compliance with Order 6 Rule 2 (1) of the Court of Appeal Rules 2011. I agree with the learned Senior Counsel for the 1st and 2nd Respondents that the submissions of the Learned Senior Counsel from the Appellant on this point is not the true position of the law. I have carefully perused the provision for Order 6 Rule 2(1) (supra) reproduced by the Appellant herein in its brief which provision is held out as being mandatory. The Order mandate only decisions appealed against to be reproduced where an appellant appeals only in respect of or against such decision. The Notice of Appeal as filed by the 1st and 2nd Respondents herein at the lower Court reveals that they carefully identified and emphasized that part of the decision of the Court below they were appealing against without being ambiguous or vague in their total 30 Grounds of Appeal. The parts of the decision of the lower Court being appealed against were clearly specified and captured thus:-

“The whole decisions EXCEPT portions thereof in favour of the Appellant”.

9. The word “except” as used by the Appellant (Respondents herein) clearly distinguished that part of the judgment not being appealed against. It is not the intention of the law makers that the Appellant should first set out paragraph 2 of the Notice of Appeal the entire areas of decision complained about running into several pages and then proceed to paragraph 3 to reduce those several pages into Grounds of Appeal, which will as well run into several pages depending on the number of Grounds of Appeal. The interpretation being sought by the Appellant will certainly lead to absurdity as this will mean that the rules intend to turn a Notice of Appeal into a “mini dissertation”. I do not think the Appellant was misled by the part of the decision of the lower Court being appealed against. After all the Appellant canvassed argument vehemently in opposition to the issues raised in the Respondents’ brief arising from the Grounds of Appeal filed.

10. I am of the view that the Appellants’ objection hinges on mere technicality or inelegant drafting of the Notice of Appeal. This objection should not be allowed to defeat 1st and 2nd Respondents’ constitutional right of appeal, as they did at the Court below.

11. Substantial justice is the in-thing, not technicality. Assuming the Notice of Appeal was inelegantly drafted, this would be mere irregularity which is allowed in order to do substantial justice by hearing the appeal, as we have done in SC.18/2016 and SC.19/2016. In sum I adopt my reasons in those 2 appeals, particularly with the fundamental issue that runs throughout the appeals that the 1st and 2nd Respondents did not link any of the polling unit results, they tendered as either Exhibit PWC 2 or Exhibit PWD.

12. In sum, however, I find merit in the appeal same is allowed. I set aside the orders of the Court of Appeal in respect of the election of the 3rd Respondent herein, OKEZIE VICTOR IKPEAZU. I affirm INEC’S declaration that he was duly elected as Governor of Abia State. Parties to bear their costs.

MOHAMMED, J.S.C.

1. When this appeal was heard on Wednesday 3rd February, 2016, I delivered my concurring Judgment agreeing with the lead Judgment of my learned brother Galadima, JSC, in allowing the appeal. I then promised to give my own reasons for allowing this appeal today 26th February,2016.

2. I have had the benefit before now of reading the lead Reasons for Judgment just delivered by my learned brother Galadima JSC, for allowing this appeal l agree entirely and adopt the reasons and conclusions as mine. I abide by all the consequential orders made therein including the order on costs.

MOHAMMAD,J.S.C.

1. When this appeal was heard on Wednesday, 3rd of February, 20l6, my learned brother Galadima, JSC. delivered the lead conclusion (Judgment) Wherein he allowed the appeal; set aside the decision of the Court below and restored the decision of the tribunal. In my Judgment, I agreed with him. I deferred giving my reasons for allowing the appeal today.

2. I have read the reasons given by my learned brother, Galadima, JSC for allowing the appeal. I am in agreement with his reasoning which I adopt as mine. I abide by consequential order made in the lead reasoning of my learned brother, including orders to costs. I allow the appeal.

RHODES-VIVOUR, J.S.C.

1. On 3 February, 2016 this Court heard this appeal and dismissed it, Reasons for that conclusion are to be given on 26 February 2016. These reasons for the judgment just read by my learned brother, Galadima JSC was made available to me in draft, I agree that this appeal should be allowed and I affirm the declaration by INEC that Okezie Victor Ikpeazu is the duly elected Governor of Abia State.

2. Parties shall bear their costs.

AKAAHS, J.S.C.

1. We heard this appeal on 3rd February, 2016 and allowed it and adjourned to 26th February, 2016 to give reasons for allowing the appeal.

2. As I stated in SC.18/2016 that until Section 49 of the Electoral Act is amended to bring in the process of electronic voting, the manual voters register will continue to play a prominent role in ascertaining whether there was over-voting or not by its production and comparing it to the number of those accredited to vote and those who actually voted. It is only then that the information captured in the smart card reader can be used to establish the actual number of persons who voted in the election.

3. It is for this reason and the more elaborate reasons contained in the judgment of my learned brother, Galadima JSC that led to allowing the appeal. Parties are to bear their respective costs.

KEKERE-EKUN J.S.C.

1. We heard this appeal on Wednesday, 3rd February 2016. On that day. I agreed with my learned brother, Galadima, JSC that this appeal is meritorious and I accordingly allowed it. I promised to give my reasons for so doing today.

2. This appeal arose from the judgment of the Court of Appeal, Owerri Division, delivered on 3rd December, 2015, setting aside the judgment of the Abia State Governorship Election Tribunal, which dismissed the petition of the 1st and 2nd respondents against the return of the 3rd respondent as the duly elected Governor of the State. Three Separate appeals were filed against the judgment, to wit:

(i) SC. 18/2016: Okezie Victor Ikpeazu Vs Alex Otti & Ors

(ii) SC.2212016: INEC Vs Alex Otti & Ors

(iii) SC.19/2016: PDP Vs Alex Otti & Ors

3. Comprehensive reasons for allowing the sister appeal in SC.18/2016: Okezie Victor Ikpeazu Vs Alex Otti & Ors have just been given by my learned brother, Galadima, JSC. As this appeal is between the same parties and on substantially the same facts, I agree entirely with the reasons advanced by His Lordship for allowing it. I adopt the reasons as mine. I abide by the consequential orders made, inclusive of costs.

NWEZE, J.S.C.

1. On February 3, 2016, upon the hearing of this appeal, I agreed with my Lord, Galadima, J.S.C that it was meritorious and ought to be allowed. I promised to give my reasons today.

2. Having read the reasons for the judgment, which my Lord, Galadima, JSC, eloquently, marshaled this morning for allowing the appeal in SC. 18/2016- reasons which I had the privilege of reading before now – I am in entire agreement with His Lordship that it would serve no useful purpose repeating the same reasons in respect of the instant appeal when the issues in both appeals are, thematically, affiliated.

3. In place of the judgment of the lower Court, I restore the judgment of the trial Tribunal which affirm the election and return of Okezie Victor Ikpeazu as the Governor of Abia State.