IHUOMA v AZUBUIKE & ORS

IHUOMA v AZUBUIKE & ORS


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON TUESDAY, 8TH DECEMBER, 2015


Appeal No: CA/OW/EPT/HA/59/2015
CITATION:

Before Their Lordships:

ITA GEORGE MBABA, JCA

PETER OLABISI IGE, JCA

FREDERICK OZIAKPONO OHO, JCA


BETWEEN

EZECHIMEREM MARTINET IHUOMA

(APPELLANT)

AND

HON. MARTINS OKECHUKWU AZUBUIKE

INDEPENDENT NATIONAL ELECTORAL COMMISSION

THE RETURNING OFFICER, ISIALA NGWA NORTH LOCAL GOVERNMENT AREA

THE RESIDENT ELECTORAL COMMISSIONER, ABIA STATE

THE NIGERIAN POLICE

THE COMMISSIONER OF POLICE, ABIA STATE

(RESPONDENTS)


PRONOUNCEMENTS


A. ELECTORAL MATTERS
1. Independent National Electoral Commission – Provisions of the Electoral Act on the power of INEC to issue guidelines for the conduct of elections

Statutory provisions conferring power on the Commission to issue regulations and guidelines for the conduct of elections

“Section 153 of the Electoral Act says: “The Commission may, subject to the provisions of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof”

And Section 73 of the Act, stipulates: “Subject to the provisions of this Act, the Commission shall issue and publish, in the Gazette, guidelines for the elections which shall make provisions, among other things, for the step by step recording of the poll in the electoral forms as may be prescribed, beginning from the polling unit to the last collation center for the ward or constituency where the result of the election shall be declared”. Per MBABA, JCA read in context

2. Independent National Electoral Commission – Power of INEC to issue guidelines for the conduct of elections

Whether the INEC has power to issue and publish guidelines for the conduct of elections

“I think the place of the INEC guideline, 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 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 v. Ajibola (2004) 16 NWLR (pt.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.” The Section 149 of the Electoral Act, 2002 is in pari materia 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 11, 2 5 elections to the State Assembly seat of Isiala Ngwa North Constituency and the Commission (INEC) had a duty to follow it, strictly. It is correct, in my view, to say that Section 153 of the Electoral Act, 2010 (as amended) gives INEC powers to issue guidelines, manuals and regulations for the conduct of a general election and by Section 73 of the Electoral Act, the Commission (INEC) shall issue and publish guidelines for the elections which shall make provisions for step by step recording of the poll at the election. The Manual and Guidelines should therefore be seen to flow from the Electoral Act, as rules to give effect to the provisions of the Act and for its administration thereof.” Per MBABA, JCA read in context

3. Voting – Duty of a voter to establish eligibility to vote and method of establishing eligibility

Duty of a voter to establish that he is registered to vote; and how it may be done

“…by Section 49(b) of the Electoral Act, the voter, appearing or claiming right to cast his/her vote, has a duty to satisfy the Presiding Officer, that his name is on the Register of Voters, before he/she could be issued with a ballot paper to vote. I believe the only way the Presiding Officer can be so satisfied is by authenticating the validity of the Voter’s Card presented by the Voter for the election, the card being the only accepted weapon to qualify him to vote at the election. It is the Voter’s Card that traces the Voter to the Register of Voters. The new and reliable process of authenticating the Voter’s Card is now by the use of the Smart Card Reader, and while the Card Reader authenticates or verifies the Voter’s Card, it also accredits and serializes the number of voters, with authentic Voter’s Cards, who present themselves for voting at each unit/polling point.” Per MBABA, JCA read in context

4. Accreditation – Nature of the accreditation process

What does accreditation process for election entail

“Accreditation process for election is primary and fundamental for a valid electoral process and the Law (Electoral Act and the Constitution) allows the Electoral Commission free hand to plan elections and to adopt requisite method(s) to register voters and to ensure proper identification of a registered voter while preparing him/her to vote. I believe that is what accreditation of voter is all about.” Per MBABA, JCA read in context

5. Non-Compliance –

Must a petitioner/appellant show that non-compliance with the Electoral Act substantially affected the results of the election

“The Lower Tribunal had relied on Section 139(1)(2) of the Electoral Act to validate the election of the 1st Respondent, despite discrepancies relating to Exhibits A1 to A7, by invoking the doctrine that the discrepancies did not constitute substantial non-compliance with the provisions of the Electoral Act. The Section says:(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 Commissioner to conduct the election.” There are several judicial authorities on the Section 139 of the Electoral Act, relating to the phrase “Substantial non-compliance” see Ojukwu v. Yar’Adua (2009) LPELR 2403 (SC); (2009) 12 NWLR (pt 1154) 50, where the Supreme Court agreed about the duty of the Petitioner/Appellant to plead not only non-compliance but also that the non-compliance substantially affected the result of the election. See also Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241; Yusuf v. Obasanjo (2005) 18 NWLR (pt. 756) 181; OKE v. Mimiko (No.2) (2014) 1 NWLR (Pt. 1388) 270; DPP v. INEC (2008) LPELR 4046; Saadu & Anor v. Afolabi & Ors47 (292) LPELR 7873 CA.” Per MBABA, JCA read in context

6. Allegation of Crime – Standard of proof for criminal allegations in an election petition

Standard of proof required in an allegation of criminal acts in an election petition

“…by Law, the alleged malpractices complained of, even if established, must be linked, sufficiently, to the Respondents as perpetrators or sponsors, thereof, before they could be made to suffer for same. The law on this has been well developed and expressly pronounced in many judicial decisions. See Section 124(6) of the Electoral Act 2010 (as amended) and the case of Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1; See also the case of DPP and Anor v. INEC & Ors (2008) LPELR – 4046, where it was held that allegation of crime in election Petition must be proved beyond reasonable doubt and must be linked with the Respondent: “The law is settled that where petitioner fails to establish agency relationship between the perpetrators of the alleged acts of violence with the candidate returned as the winner of the election, then he cannot attribute any offence committed by the agent to the candidate. See also Saadu & Anor v. Afolabi & Ors (2012) LPE – 7873 (CA).” Per MBABA, JCA read in context

B. EVIDENCE
7. Admissibility of Documentary Evidence – Whether documentary evidence requires corroboration by oral testimony

Does a documentary evidence require corroboration by oral testimony

“A documentary evidence does not require oral testimony to complete it. See Lamire v. Data Processing Maintenance & Services Ltd (2005) 18 NWLR (pt.958) 438; B.F.I. Group v. Bureau of Public Enterprises (2007) LPELR 8998 CA.” Per MBABA, JCA read in context


LEAD JUDGMENT DELIVERED BY MBABA, JCA


On 30/4/2015, Appellant, as Petitioner filed Petition No. AB/EPT/HA/16/2015 (subject matter of this appeal) at the National and State House of Assembly Election Tribunal against the Respondents, seeking the following reliefs:

(i) That the 1st Respondent was not duly or validly elected/returned as he did not score the highest number of lawful votes cast at the election.

(ii) That it may be determined and thus declared that the said election and the return of the 1st Respondent Hon. Martins Okechukwu Azubuike are voided by acts which clearly violate and breach the provision of the Electoral Act, 2010. Including but not limited to the rigging and manipulation of election results, unprecedented acts of violence, thuggery, abduction and coercion of opponents etc committed at the Polling Units and Wards aforementioned

(iii) That it may be determined that going by the lawful votes at the said election, your Petitioner ought to have been returned and should be returned as the elected Member of the State House of Assembly representing Isiala Ngwa North Local Government.

(iv) In addition and/or alternative, that your Petitioner be declared as the winner of the said election, judging by the results obtained after the physical recount and re-examination by and before the tribunal of the votes from the affected or aforementioned Polling Units and Wards.

OR

a. That the election in the said Polling Units and Wards be voided and/or set aside and a fresh election ordered.

b. That a fresh election be ordered throughout Isiala Ngwa North Local Government for the election into the State House of Assembly, Abia State in accordance with the provisions of the Electoral Act, 2010.

The 1st Respondent filed his Reply to the Petition on 4/5/15, while the 2nd to 4th Respondents filed their Reply on 26/5/15. The 5th and 6th Respondents filed theirs on 3/6/15. They all urged the tribunal to dismiss the Petition for incompetence and as lacking in merits. The Petitioner (Appellant) filed Replies to the Respondents’ Replies. After hearing the Petition, the tribunal, on 19/10/15, delivered judgment against Appellant and dismissed the Petition. This appeal is against that decision.

Appellant’s Notice of appeal was filed on 28/10/15 as per pages 772 to 777 of the Records of Appeal, disclosing 5 grounds of Appeal (with intent to file additional grounds of appeal on receipt of the Records of Appeal).

Appellant filed his brief of arguments on 11/11/15 and distilled three (3) issues for the determination of the appeal, as follows:

a) Whether or not by the preponderance of evidence adduced at the lower Trial Tribunal, the ppellant was able to prove that the election of the 1st Respondent into the House of Assembly of Isiala Ngwa North Constituency of Abia State, held on the 11th day of April, 2015, was conducted in alter (sic) disregard and/or violation of the approved Guideline for the said election, made pursuant to the provision of the Electoral Act 2010 (as amended) – Ground 1 of the Appeal.

b) Whether or not the Appellant’s right to justice and resort to Court of law to seek redress/or remedy to perceived abnormally or irregularities in the conduct of an election as in the instant case can be inhibited in any manner whatsoever. (Ground 2)

c) Whether or not Exhibit ‘C’ tendered and admitted before the lower Trial Tribunal was on conflict with Section 139 (1) (2) of the Electoral Act 2010 (As Amended). Grounds 3 and 4.”

The 1st Respondent filed his Brief of arguments on 16/11/15 and distilled two issues for the determination of the Appeal, as follows:

1) Whether the lower Tribunal was in error in holding that Appellant’s Petition lacked merit for failure to establish that there was substantial noncompliance with the provisions of the Election Act, 2010 (as amended) Grounds 1, 3 and 4

2) Whether the lower Tribunal’s statement that there was absolutely no basis for filing the Petition, having reviewed the case of the parties before it amounted in any way to inhibiting the Appellant’s right to justice and resort to Court of law to seek redress/remedy. (Ground 2).

The 2nd to 4th Respondents filed their Brief on 16/11/15 and distilled a lone issue for the determination of the appeal, namely:

“Whether the Tribunal rightly evaluated the evidence adduced by the opposing parties in this Petition vis a vis the issues joined, based on which it dismissed the Petition for want of proof by the Appellant. (Grounds 1,2 and 3 of the Appeal)”.

Filed no brief.

When this appeal was heard on 23/11/15, Counsel adopted their briefs and urged us accordingly, while the Counsel for the 5th and 6th Respondents told the Court they filed no brief. Appellant had filed separate Reply briefs on 20/11/15 to 1st Respondent and 2nd to 4th Respondents briefs.

Arguing the appeal, on issue one, Counsel for the Appellant, R.U. Oyiwona, Esq. referred us to Sections 15A and 153 of the Electoral Act 2010 (as amended) which empower the INEC (2nd Respondent) to organise/conduct elections and to make regulations and guidelines for the purpose of giving effect to the provisions of the Act. He said that Section 153 of the Electoral Act therefore provides the foundation and vehicle to mobilize all other sections of the Act to attain its objective; that in the issuance of regulations, guideline and manual for the conduct of the elections, Section 73 of the Act comes to play (that is, ‘the provision empowering INEC to make regulations, guideline etc for the conduct of election).

Counsel then founded on the paragraphs of Exhibit C which he said provide the step by step procedure for a valid accreditation for the purpose of election, and on Exhibit B which, he said further, amplified the steps to be taken in the conduct of elections, on the event of failure of the card reader to function. He said those Exhibits were made pursuant to the Section 73 of the Act.

He submitted that the only mode of accreditation for the conduct of the Governorship/House of Assembly General Elections held on 11/4/15 in Nigeria was by the use of the Card Reader machine; that any other form of accreditation, other than the approved Guideline was unknown to the Guideline. He referred us to the case of A.G. Lagos State v. A.G. Federation (2014) 9 NWLR (Pt.1412) 217 at 237, on the judicial interpretation of the Legal Maxim; expressio est exclusio alterius – i.e. the express mention of one thing in a statutory provision automatically excludes other stipulations which would otherwise have been applied by implication. This is the rule, which means that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication.”

Counsel submitted that Exhibits A1 to A7 (Card reader print out in respect of Governorship/House of Assembly Election in Isiala Ngwa North L.G.A. of Abia State, held on 11/4/15) was tendered by PW5, a staff of the 2nd Respondent, along with Exhibits B and C; that by the evidence of the staff of 2nd Respondent (who was subpoenaed, to testify) the total figure of the accreditation in the Governorship/House of Assembly General Election held on 11/4/15 in Isiala Ngwa North Local Government Area of Abia State, both successful and unsuccessful, stood at 23, 786; that the total numbers of successful accreditation for the said election was 15,049 while the unsuccessful accreditation was 8,734.

Counsel submitted that the Guidelines for the conduct of the elections remained sacrosanct; that under cross examination 2DW1, 2DW2 and DW3, all admitted they had no power/right to alter or vary the guidelines set by 2nd Respondent for the conduct of the elections; that 2DW2 and 2DW3 maintained in the evidence that no report was issued to them in respect of any incident of card reader’s failure on the day of the election. Thus, Counsel, submitted that the purported manual accreditation, done by the 2nd to 4th Respondents, in respect of the election offended the directive contained in paragraph 10 of Exhibits C and that of B; that 2DW1 -3, during the hearing, admitted that the figures recorded in Exhibits A1-7 the result and effect of it is that, the election of 1st Respondent is liable to be set aside in view of the express provisions of paragraph 28 of Exhibit B. He relied on the case of Malumfashi v. Yaba (1999) 4 NWLR (pt.598) 230 at 233.

Counsel submitted that it was therefore wrong for the lower Tribunal to hold the view that the differences recorded in the votes have been explained. He said that throughout the evidence no witness called by the Respondents explained satisfactorily the differences in the figure as in Exhibits A1 – 7, compared to Exhibit K. He said that the Respondents’ witnesses rather admitted, under cross examination, that they were not in any of the polling units on the day of the election, he also said that no polling unit staff of the 2nd to 4th Respondents was called to explain whether or not there was manual accreditation in addition to the card reader accreditation. He also referred us to paragraph 21 of the 2nd to 4th Respondents’ Reply to Appellant’s Petition, which stated that there was no incident of Card reader failure on the date of the said election, which shows that the resort to manual accreditation was not permitted – page 57 of the Records.

He urged us to resolve the issue one for Appellant.

On Issue 2, whether Appellant’s right to seek redress/remedy in court can be inhibited in any manner, Counsel answered in the negative and relied on Section 36 of the 1999 Constitution (as amended) , which protects Appellant’s right to approach court for redress and to be accorded fair hearing. He also relied on the Electoral Act, 2010, as amended, Sections 137(1)(a) and 138 . Counsel therefore quarreled with the Tribunal’s view expressed on page 769 of the Records, which he said tantamounted encroaching on the Constitution/Right of the Appellant as guaranteed in the Constitution; he said that the Tribunal was carried away by the bare scores recorded for parties by the 2nd to 4th Respondents in arriving at the erroneous decision; that the Lower Court failed to properly appraise, evaluate and/or assess the issues put across to it by the parties, and that that rendered the decision perverse. He relied on Uwah v. Akpabia (2004) 7 NWLR (pt.1407) 472 at 477; CPC v. Yaguda (2013) 7 NWLR (pt.1354) 430 at 439.

On Issue 3, whether Exhibit C was in conflict with Section 139(1) and (2) of the Electoral Act 2010 (as amended) , Counsel answered in the negative. He said Exhibit C was part of the guidelines by the 2nd Respondent for the conduct of the elections, being the preliminary steps for the conduct of the elections, whereas Section 139(1) and (2) of the Electoral Act merely, empowers the Tribunal to look into the circumstances surrounding the conduct of a given election, as to whether or not the election substantially complied with the provision of the Electoral Act. He submitted that for Section 139(1) and (2) of the Act to be invoked, there must be election, conducted with laid down Guidelines and Manuals before the issue as to whether or not the election substantially complied with the provisions of the Act arises. He relied on the case of Oke v. Mimiko (No.2) (2014) 1 NWLR (pt.1388) 270 at 342 to say that certain acts of noncompliance with the provisions of the Electoral Act in the conduct of elections go to the root of the election; that noncompliance with Exhibits B and C, as relates to accreditation in the conduct of the election which produced the 1st Respondent, should have been viewed by the lower Tribunal as substantial non-compliance that affected the entire exercise; that there cannot be a valid election, in the absence of a valid accreditation according to law. He relied on the case of Ajadi v. Ajibola (2004) 16 NWLR (pt.898) 9.

Counsel urged us to apply Section 15 of the Court of Appeal Act, 2004, and review the evidence and the entire case holistically and enter judgment for Appellant, relying on Exhibits A1 – 7 and B, C and K as the relevant determinant factors of the case of the Appellant. He relied on the case of Ogundalo v. MAC JOB (2015) 8 NWLR (pt.1460).

Counsel also called our attention to the kind of conclusion reached by the tribunal, that it merely set aside the Appellant’s Petition; he said that that did not portray attribute of good judgment. He relied on Barrigha v. PDP (2013) 6 NWLR (pt.1349) 108 at 111 to say that the concluding of a good Judgment must be precise and coherent.

He urged us to resolve the issues for Appellant and allow the appeal.

Counsel for the 1st Respondent, N.U. Nwokocha Alaaiwe Esq, on Issue 1, whether the trial Tribunal was in error in holding that Appellant’s Petition lacked merit for failure to establish substantial non-compliance with the provisions of the Electoral Act 2010 by 2nd Respondent in the conduct of the election, Counsel answered in the negative.

Counsel said the Appellant placed much reliance on the Guidelines for the conduct of the elections, which were mere directive of the Commission (2nd Respondent) and which cannot by any stretch of imagination supplant the law itself i.e. Electoral Act 2010 (as amended). He said that whereas the ground on which the Petition was filed and proceeded to hearing and determination was alleged malpractices or non-compliance with the provisions of the Electoral Act, that Appellant, by his grounds of appeal and issues distilled thereon, changed his case to alleged malpractices or non-compliance with the provisions of a purported guideline and manual; that appellant did not seek leave of the lower Tribunal or of this Court to canvass, on appeal, on a totally different case from that very clearly pleaded by him and prosecuted at the lower Tribunal. He referred us to paragraph 43, page 9 of the Petition (see page 9 of the Records of Appeal).

Counsel referred us to Section 138(1)(b) of the Electoral Act, 2010 and submitted that a Petitioner who complains of malpractices or non-compliance, must show that the corrupt practices or non-compliance complained of is contrary to the provisions of “this Act”, he must state the specific section or sub-section of the Electoral Act breached; that Appellant did not do so in this case.

On which accreditation process is in accordance with the Electoral Act, 2010, Counsel said the only procedure for accreditation of Voters provided for in the Electoral Act is as per Section 49 of the Act, which says:

“(1) Any person intending to vote with his voter’s card, shall present himself to a presiding officer at the polling unit in the constituency in which his name is registered with his voter’s card.

(2) Any Presiding Officer, shall, on being satisfied that the name of the person is on the Register of voters, issue him a ballot paper and indicate on the Register that the person has voted.”

Counsel submitted, vehemently, that there is nowhere in the above section of the Act that mention is made of an Electoral Smart Card Reader, first, having to authenticate a voter’s card or capturing the voter’s finger prints before the presiding officer is to issue him with a ballot paper. He argued that if Appellant intended to make a case that there was no accreditation or that it was not done in accordance with the law, he must show, polling unit by polling unit, how the accreditation procedure adopted in each polling unit breached the provisions of Section 49 of the Electoral Act. He further submitted that the Electoral Act itself makes it abundantly clear that the only non-compliance which will qualify to void an election is one made in breach of the provisions of the Act itself; that non-compliance with a guideline, manual or other directives of a similar nature made by the Commission INEC) will not be a ground or basis for invalidating an election. He relied on Section 138(1) of the Electoral Act, which sets out the grounds on which an election can be questioned. He founded on Section 138(2) of the Act, which says:

“An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election”

Counsel submitted that by inserting the above provision immediately after setting out the grounds on which an election may be questioned, the legislature intended to sound the message loud and clear that only infringements of specific provisions of the Electoral Act can qualify for adjudication at an Election Tribunal. Thus, relying solely on the guidelines or manual which are mere instruction or “directive” of the Commission, Counsel said Appellant has failed to substantiate his allegation of non-compliance with the provisions of the Electoral Act. Counsel said the said Guidelines and Manual of INEC do not even qualify as subsidiary legislation and even if they did, cannot expand or expatiate the principal law, that is, the Electoral Act.

He relied on the case of NNPC and Anor v. FAMFA OIL LTD (2012) LPELR – 7812 SC; Gov. of Oyo State &Ors v. Folayan (1995) LPELR – 3179 SC; (1995) 8 NWLR (pt.413) 292; Olanrewaju v. Oyeyemi & Ors (2000) LPELR 6045 (CA); (2001) 2 NWLR (Pt.697) 229.

Counsel said the use of card Reader in the conduct of elections in Nigeria is new and so there are no decided cases on its application, except that of this Court (Lagos Division) in the case of All Progressive Congress (APC) v. Mr. Joseph Olujimi Kolawole Agbaje & 4 Ors : CA/L/EPT/GOV./751A, delivered on 26/8/15, where it was observed:

The evolution of the concept of smart card reader is a familiar one. The same came to being during the last general election held in March and April 2015 in Nigeria. On this score, it is a nascent procedure injected into our infant and fledging electoral system to ensure credible and transparent election. Specifically, it is aimed to concretise our fragile process of accreditation – the keystone of any suffrage; the concept, owing to its recent invention by INEC, a non-legislative body, traces its paternity to the manual for Election Officials, 2015: chapter 2, pages 35 – 42. Put the other way round, the extant Electoral Act 2010, as amended, which predates the concept, is not its parent or progenitor. Since it is not the progeny of the Electoral Act, a ground in a Petition fronting it as a ground to challenge any election does not have its blessing, nor Section 138(1) of it. Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election: It does not qualify as one.”

Counsel therefore submitted that a Petitioner who intends to challenge the accreditation process adopted by INEC has to show and demonstrate, very clearly, that such accreditation did not comply with Section 49 of the Electoral Act. He submitted that this was not pleaded by the Appellant nor given in evidence and it was never his case at the Tribunal. Counsel, however, submitted that by so arguing (above), the 1st Respondent did not concede that the elections were not conducted in compliance with INEC guidelines and manuals, Rather:

(i) That Appellant never proved non-compliance with provisions of the Electoral Act as it relates to method of accreditation

(ii) That even if this Court accepts that the applicable method of accreditation for the questioned election is not that set out in Section 49 of the Act, but rather that set out in the Manuals or Guidelines for the Election, the onus to prove such non-compliance by credible evidence of witnesses rests with the Appellant; he said that the evidence of the Appellant had no bearing on failure to conduct accreditation in line with the manual and Guideline but rather other species of alleged malpractices such as thumb-printing, directing voters where to vote, etc.

(iii) Even if Appellant procured credible evidence of failure to accredit voters in accordance with the Electoral Act of INEC Guidelines or Manual, the election of the 1st Respondent cannot be invalidated for acts he was not responsible for, because he was not responsible for the mode of accreditation of voters – being the business of the 2nd Respondent.

Counsel further argued that Appellant cannot blow hot and cold; that he too had pleaded that the card reader had failed in the said election and manual accreditation was resorted to; that the card reader failed in some instances. He argued that even if Appellant were to prove that staff of INEC failed to keep to their own guidelines, directives or instructions in the manner of use of the Voter’s Card Readers or what should be done if it (card reader) could not be used, as instructed, the 1st Respondent could not be punished and his victory invalidated for such manner of lapses; that the election was not conducted by 1st Respondent and he did not hire the staff of the 2nd Respondent, who conducted the election; that none of the Appellant’s witnesses gave evidence that they saw the 1st Respondent or any other person authorized by him (1st Respondent) bribing officials to flout their own directives.

On the actual accreditation at the election, Counsel relied on the Exhibits M1 to M134 (Forms EC & A(1)) tendered by the 1st Respondent and affirmed by 2nd to 4th Respondents, to say that the accreditations were done by both card reader and manually; that number of voters accredited in the ten wards of the Constituency was 29,054, which also showed the total votes cast (both rejected and valid) was 27,815; that that showed the total number of votes cast at the election in the entire constituency was less and not more than the number of accredited voters; that an examination of Exhibits L1 to L10 (results from the ten wards in Form EC & B(1)) also confirmed that for each of the ten wards, total votes cast was less than total number of accredited voters.

He asserted that the burden of proving election Petition is on the Petitioner; that in this appeal, Appellant had alleged that the election was vitiated by failure of INEC to conduct the accreditation in accordance with the guideline or manual, but none of the witnesses gave evidence in that respect. He relied on Uche & Anor v. Elechi & Ors (2012) LPELR – 8429 (CA); UCHE & Anor v. Elechi & Ors (2012) LPELR – 7823 (SC); (2012) 13 NWLR (pt.1317) 330; PDP v. INEC & Ors (2011) LPELR – 8831 CA; PDP v. INEC & Ors (2008) LPELR – 4046 (CA); Gundiri v. Nyako (2014) 2 NWLR (pt.1391) 211.

Counsel submitted that the judicial authorities are to the effect that a Petitioner must specifically plead that the alleged acts of non-compliance substantially affected the results of the election. He relied on Section 138(1)(b) of the Electoral Act and the case of Ojukwu v. Yar’Adua & Ors (2009) LPELR – 2403 (SC); (2009) 12 NWLR (pt.1154) 50. He added that, from the position of the Supreme Court, once a Petitioner has not pleaded that the alleged non-compliance substantially affected the results of the election, then unless there is another ground of the Petition to sustain it, such a Petition can be terminated in limine for disclosing no reasonable cause of action; that in that case no evidence, whether documentary or oral is required, either the Petitioner(s) or the Respondents.

Counsel further argued that for Petitioner to succeed in allegation of corrupt practices or non-compliance which substantially affected the results of the election, he must also establish that the Respondent was responsible for the wrong; that this is because nullification or invalidation of an election is the greatest punishment that a candidate duly declared elected and the authority charged with the conduct of the election can experience. He relied on the case of DPP and Anor v. INEC & Ors (2008) LPELR – 4046 (CA). Counsel also relied on Section 124(6) of the Electoral Act 2010, which says that a candidate shall be deemed to have committed offence if the offence was committed with his knowledge and consent, or the knowledge and consent of a person who was acting under the general or special authority of the Candidate with reference to the election. He also relied on Abimbola & Anor v. Atilola & Ors (2009) LPELR – 3568 (CA); PDP v. INEC & Ors (2012) LPELR – 8406 (CA); Saadu & Anor v. Afolabi & Ors (2012) LPELR – 7873 CA; Oyegun v. Igbinedion (1992) 2 NWLR (pt.226) 747. He also relied on Okunlade v. Azeez & Ors (2009) LPELR – 4730 where the Court of Appeal held:

“It remains the law that a candidate at an election cannot be held responsible for the criminal behaviour of others which behaviour he did not know of, authorise or subsequently ratified. Court have been consistent in this resolve.”

He cited other authorities, including Anozodo v. Audu (1999) 4 NWLR (pt.600) 530; Yusuf v. Obasanjo (2005) 18 NWLR (pt.956) 96; Ajadi v. Ajibola (2003) 31 WRN 134; Amosun v. INEC & Ors (2010) LPELR – 4943 CA.

He concluded that, from those authorities, an elected candidate cannot have his election nullified on the ground of irregularities or malpractices committed in the process of the election, unless it can be proved that the Candidate expressly or impliedly authorised them; that it is also immaterial that the alleged malpractices are very serious, if there was no evidence to connect them to or with the person returned as elected. He relied on Buhari v. Obasanjo (Supra).

On whether the Tribunal’s statement that there was absolutely no basis for filing the Petition, amounted to inhibiting the Appellant’s right to justice and to resort to court for redress, Counsel answered in the negative. He reproduced the relevant statement of the Tribunal on pages 768 – 769 of the Records of Appeal, and submitted that by the statement, the Tribunal was making assessment of the case of the Appellant, who wanted to be declared the winner of the election; that that assessment alone was evidence that Appellant’s right of access to Court was protected. Thus, Appellant was never denied access to court and none of his rights as enshrined in the Chapter IV of the 1999 Constitution was infringed.

He urged us to resolve the issues against the Appellant, and dismiss the appeal.

Counsel for 2nd to 4th Respondents, Sunday Nwigboke, Esq., arguing the lone issue distilled by them for the determination of the appeal said that the Tribunal had rightly identified, evaluated the evidence adduced by the parties, vis a vis, the issues joined, to reach its decision to dismiss the Petition, for want of proof of the claims of the Appellant. He said that Appellant had a duty to prove his claims in the Petition, and that, on the strength of his case, as he who asserts must prove. He relied on Uche v. Elechi (2012) 13 NWLR (pt.1317) 330; Omisore v. Aregbesola (2015) 15 NWLR (pt.1482) 205.

Counsel said only the evidence of PW1 to PW3 were relevant who testified concerning elections at Umuode Central School, Umuezegu Village Square and Amochi II, Umuogele, respectively, and that their evidence, even if they were to be believed, would only deduct the total admitted scores of 1st Respondent by 1277 votes and that of Petitioner by 107 votes, bringing their total scores from 18,694 and 6913 votes to 17,417 and 6,806 votes, respectively. That, with that, there was no way the Appellant could be declared the winner of the elections.

Counsel argued that the documentary evidence were dumped on the court as none of the PW1, PW2 and PW3 was shown any of the exhibits tendered by the Petitioner; that none of them related the contents of the exhibits to the events at the Polling Units in respect of which they gave evidence; that the Petitioner himself (as PW5) admitted, under Cross examination, that he never visited any Polling Unit on that day of election, apart from where he voted and he too did not relate the documents to any of the Polling Units complained of, and could not have done so. He added that the witnesses gave evidence in respect of 5 Polling Units as opposed to 138 Polling Units involved in the entire election. He relied on the case of Oke v. Mimiko (2013) LPELR – 20888 (CA) to say that it was clear that Appellant had totally failed to discharge the burden placed on him to prove the serious acts of infractions complained about, especially as the complaint bordered on criminal allegations, and the degree of proof was beyond reasonable doubt.

Counsel also referred to the Exhibits A1 to A7 tendered by PW4, which the Petitioner purported to be Polling Unit (PU) accreditation figures for Isiala Ngwa North L.G.A; that at paragraphs A, B, C and D, (page 1 of the certification of the Exhibits by INEC) it was expressly stated that the document was with “respect to Voter Accreditation Figures for the April 11 and 25, 2015 Governorship/House of Assembly election in Isiala Ngwa North LGA Abia State.” ; that the document was totally discredited, because it is in respect of elections which are not subject of this Petition. Counsel emphasized that on top of Exhibits A3 to A7 it is also clearly headed “Abia State Governorship/House of Assembly Election – 11th and 25th April 2015.” He said it would be speculating, to say the said Exhibits related to the April 11, 2015 Elections or for the unknown election of 25/4/2015 or a combination of the known and the unknown elections; that the only option was to discountenance the Exhibits, especially as they were simply dumped on the Tribunal, along with other documents, with no explanation of their purpose, nor the contents related by the witness to the case of the Petitioner, or to the events in any polling Unit in the Consistency.

On the dumping of documents on the Tribunal without evidence to explain their purpose, Counsel relied on the case of PDP and Anor v. Abari & Ors (2009) LPELR – 4835 (CA) and Uche & Anor v. Elechi & Ors (2012) LPELR – 7823 (SC) where it was held that where:

Petitioner complains of non-compliance with the provisions of the Electoral Act, 2010 (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 on minimal of proof. He must show figures that the adverse party was credited with as a result of the non-compliance forms EC8A election materials not stamped/signed by Presiding Officers. He must establish that non-compliance was substantial, that it affected the result…”

It is only then, he said, that the Respondent are to lead evidence in rebuttal! See also Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1; Awolowo v. Shagari (1979) 6 – 9 SC 51; Akinfosile v. Ijose (1960) SCNLR 447. He also relied on ANPP v. INEC (2010) 13 NWLR (pt.1212) 549.

Counsel submitted that in this case Petitioners called 117 witnesses and tendered 145 exhibits, but that all that had little or nothing to say about irregularities at the election.

Counsel said that the chart contained in Appellant’s final address was a brilliant idea, but it was not substitute for the evidence required from the Appellant. He relied on Ishola v. Ajiboye (1998) 1 NWLR (pt.532) 74; Chukwujekwu v. Olarere (1992) 2 NWLR (pt.221) 86.

Counsel also submitted, as 1st Respondent did, that the burden was on the Appellant to establish the claims of non-compliance with the provisions of the Electoral Act, which he failed to do. He relied on the case of Sorunke v. Odebunmi 5 FSL or (1960) SCNLR 44; PDP v. INEC & Ors (2011) LPELR – 8831 CA. He also relied on Okafor v. INEC (2010) 3 NWLR 27 (pt.1180) 1 at 51 to say that in a declaratory relief a party must succeed on the strength of his own case. He added that there was presumption of regularity and correctness in favour of the election result declared by the INEC and relied on Agbeke v. Emordi (2010) 1 NWLR (pt.1204) 1 at 51; Kalu v. Uzor (2006) 8 NWLR (pt1212) 623 and Abaranye v. Emeana (2008) 10 NWLR (pt.1096) 496.

Counsel also relied on the case of DPP & Anor v. INEC & Ors (2008) LPELR – 4046 to say that the Appellant has the duty to prove that the non-compliance complained of had substantial effect on the elections. Buhari v. Obasanjo (supra); Adeola v. Owoade (1999) 9 NWLR (pt.617) 30 at 41; Na-Gombe v. INEC (1993) 1 NWLR (pt.267) 94; and Section 146(1) of the Electoral Act, 2010.

He also emphasized that the 1st Respondent must be proved to have been responsible for the wrongs or malpractices complained of in the conduct of the elections before he could be punished for it by way of nullification of his victory. He relied on the case of DPP and Anor v. INEC & Ors (2008) LPELR – 4046 CA; Abimbola & Anor v. Atilou & Ors (2009) LPELR – 3568; he said the law is that where the Petitioner fails to establish agency relationship between the perpetrators of the alleged candidate returned as the winner of the Election, then he cannot attribute any offence committed to the candidate Adediran v. Ladapo (1991) 1 L.R.C.N. 110; Opia v. Ibru (1992) 3 NWLR (Pt. ) 658; Falae v. Obasanjo (1994) 4 NWLR (Pt. 599) 1 at 476; Waliu v. Bafarawa (2004) 16 NWLR (Pt.898) 1 at 45; Ogbunbiyi v. Ogundipe (1992) 9 NWLR (pt.263) 23; PDP v. INEC & Ors (2012) LPELR 8406 (CA); Buhari v. Obasanjo (2005) All FWLR (Pt.273)1 at 158.

Counsel said the testimonies of PW1 to PW4 did not establish the allegations of thuggery, violence, bribery, multiple voting by the Petitioner and did not link the 1st and 2nd Respondents or their agents with the said electoral offences. He relied on Section 124(6) of the Electoral Act, 2010 (as amended), Buhari v. Obasanjo (Supra); Falae v. Obasanjo (No.2) (1999) 4 NWLR (Pt.599) 476; Ebube v. Ezenduka (1998) 7 NWLR (Pt. 536) 74; Andu v. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456; Obun v. Ebu (2006) All FWLR (Pt.327) 419; Yusuf v. Obasanjo (2008) 18 NWLR (Pt.956) 96.

He argued that Appellant did not even make out a case at the tribunal to require rebuttal from the Respondent.

He urged us to dismiss the appeal.

In his Reply brief to 1st Respondent’s argument, Appellant emphasized the provisions of Section 49(2) of the Electoral Act 2010, to the effect that the presiding Officer shall be satisfied that a particular voter whose name appears on the register may be issued a ballot paper saying that the process of being satisfied calls for the use of the card reader as stipulated by the Manual for the conduct of the election i.e. Exhibit C; that having established by means of Exhibits A1 to A7, B and C, the method of accreditation authorized for the conduct of the Election, the onus had shifted to the 1st Respondent, who alleged that manual accreditation was allowed at the election to prove it, by calling any of the presiding officers to demonstrate that method of accreditation.

On the 2nd to 4th Respondents’ submission that Exhibits A1-7 and B and C were dumped on the Tribunal, Appellant’s Counsel said the documents were tendered by a staff of the 2nd Respondent and opportunity, given to the 2nd Respondent to cross examine the PW4 (staff of 2nd Respondent) who tendered the documents, but the Respondents failed and/or neglected to cross examine him. He said that documentary evidence speaks for itself and requires no oral explanation. He relied on INEC v. Atuma (2003) 1 NWLR (pt. 1366) 494 at 501. He added that in election Petition, the decision of the Court, particularly, when the issue as to majority of lawful votes is based largely on documentary evidence (mainly election forms) the question of appraisal of oral evidence or whether oral evidence was called at all, cannot be an issue. He relied on the case of Ngige v. Obi (2006) NWLR (Pt. 999) 1 ANPP v. Usman (2008) NWLR (pt.1100) 487.

He added that the Respondents were deemed to have admitted the contents of the exhibits, having not subjected the INEC staff (PW4) who tendered them to any cross examination. He relied on Akpagher v. Gbungu (2015) 1 NWLR (pt.1440) 209 at 214:

“Where a witness is not subjected to cross fire of cross examination, the net effect is plain in the eyes of the law, that vital and impregnable evidence is deemed to have been conceded” Again, he urged us to allow the Appeal.

RESOLUTION OF THE ISSUES

I think the main issue thrown up for the determination of this appeal is one as donated by Appellants issue 1 and the 1st Respondent’s issue 1. I shall modify theirs as follows:

(1) Whether, going by the evidence adduced at the Tribunal, Appellant was able to prove that the election of the 1st

Respondent as declared by INEC into the House of ssembly Seat of Isiala Ngwa North Constituency of Abia State, following the 11th April 2015, elections, was done in utter disregard and/or violation of approved Guidelines for the said election, made pursuant to the provisions of the Electoral Act, 2010 (as amended), particularly with regards, to the use of smart card readers for accreditation of voters. Or put it differently:

Whether Appellant had established substantial non-compliance with the Provisions of the Electoral Act, 2010 in the conduct of the election to suggest nullification of the declaration of the 1st Respondent by the 2nd Respondent as the winner of the April 11th 2015 Elections to the Assembly Seat of Isiala Ngwa North Consistency.

I believe the other two issues by Appellant whether Appellant’s right to justice/resort to Court for redress has been inhibited by the pronouncement of the Tribunal or whether Exhibit C was in conflict with Section 139(1) and (2) Electoral Act, 2010, are subsumed in that main issue. The same goes for the 1st Respondent’s 2nd issue which was another way of expressing Appellant”s 2nd issue. Of Course the lone issue by the 2nd to 4th Respondents was an approach of the same issue 1 by the Appellant and 1st Respondent via evaluation of the entire evidence adduced at the trial to appraise the decision of the trial Tribunal.

The main contention of Appellant in this appeal appears to revolve around the place of Exhibits A1 to A7, B and C tendered by the PW4, who was a staff of INEC (2nd Respondent) subpoenaed to give evidence in the case at the Tribunal. Exhibits A1 to A7 were report generated from the election i.e. card reader printouts in respect of Governorship/House of Assembly Election in Isiala Ngwa North Local Government Area of Abia State held on 11th April, 2015. All the parties admitted that the said Exhibits related to the April 11, 2015 General Elections, despite the belated arguments of 2nd to 4th Respondents that the documents related also to unknown elections of 25th April, 2015. Such issue cannot arise in this appeal, not being covered by the grounds of appeal by Appellant, and the 2nd – 4th Respondents did not cross appeal or raise Respondent’s Notice to raise it.

Exhibit B was the Press Statement released by the 2nd Respondent informing all Nigerians that Card Readers will be used for the April 11, 2015, Elections and Exhibit C was INEC approved Guidelines and regulations for the conduct of 2015 General Elections. Each of the documents (Exhibits) was duly certified by the 2nd Respondent, as its authentic document, and so Counsel for 2nd to 4th Respondents had no moral ground to argue against them. See the case of Kalu v. Ohuabunwa & Ors CA/OW/EPT/SEN/27/2015, delivered on 2/10/15 wherein we deprecated attempt by INEC to disown the very documents they produced in Court.

Counsel for the Appellant had submitted that the Exhibits B and C derived their relevance and strength from Section 153 of the Electoral Act 2010 (as amended) which empowered INEC to make regulations, guidelines or manual for the purpose of giving effect to the provisions of the Electoral Act and for its administration thereof; that that section is the foundation, the vehicle and the mobilizer of all other sections in the said Electoral Act. He also relied on Section 73 of the Electoral Act 2010 (as amended).

Section 153 of the Electoral Act says:

“The Commission may, subject to the provisions of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof”

And Section 73 of the Act, stipulates:

“Subject to the provisions of this Act, the Commission shall issue and publish, in the Gazette, guidelines for the elections which shall make provisions, among other things, for the step by step recording of the poll in the electoral forms as may be prescribed, beginning from the polling unit to the last collation center for the ward or constituency where the result of the election shall be declared”

Counsel had referred us to paragraph 7 of the Exhibit C, which he said laid down the step by step procedure for a valid accreditation for the purpose of the Election; he said that Exhibit B further amplified the steps to be taken in conduct of the election, in the event that the card reader which was the only approved mode of accreditation on the April, 2015 elections failed to function. He also maintained that the guidelines for the conduct of the elections including the use of card readers for accreditation of voters, was sacrosanct and fundamental for the conduct of the elections.

I think the place of the INEC guideline, 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 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 v. Ajibola (2004) 16 NWLR (pt.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.”

The Section 149 of the Electoral Act, 2002 is in pari materia 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 11, 2015 elections to the State Assembly seat of Isiala Ngwa North Constituency and the Commission (INEC) had a duty to follow it, strictly.

It is correct, in my view, to say that Section 153 of the Electoral Act, 2010 (as amended) gives INEC powers to issue guidelines, manuals and regulations for the conduct of a general election and by Section 73 of the Electoral Act, the Commission (INEC) shall issue and publish guidelines for the elections which shall make provisions for step by step recording of the poll at the election. The Manual and Guidelines should therefore be seen to flow from the Electoral Act, as rules to give effect to the provisions of the Act and for its administration thereof.

Accreditation process for election is primary and fundamental for a valid electoral process and the Law (Electoral Act and the Constitution) allows the Electoral Commission free hand to plan elections and to adopt requisite method(s) to register voters and to ensure proper identification of a registered voter while preparing him/her to vote. I believe that is what accreditation of voter is all about.

By Section 61(1) of the Electoral Act, “The Presiding Officer shall regulate the admission of voters to the polling unit and shall exclude all persons other than the candidates, polling agents, poll clerks and persons lawfully entitled to be admitted including accredited observers and the Presiding Officer shall keep order and comply with the requirements of this Act at the Polling Unit.”

Part of that requirements of the Act is elaborated in the INEC Approved Guidelines and Regulations for the Conduct of 2015 General Elections (Exhibit C), made by INEC pursuant to Section 153 of the Electoral Act, 2010 Paragraphs 7(a)(b)(c) and 8(a)(b)(c) of the Manual and Guidelines deal with accreditation of voters and voting procedures at the Election. It says:

“7(a) No person shall be allowed to vote at any polling unit/voting point other than the one to which he/she is allotted and his/her name appears on the register of voters, and he/she presents his/her Permanent Voter’s Card and has been verified by the Card Reader, or as otherwise determined by the Commission.

(b) No voter shall cast his/her vote other than by personally attending the polling unit/voting point and in the manner prescribed by the Commission.

(c) The Presiding Officer shall regulate the admission of voters to the polling unit/voting point, and shall exclude all other persons except candidates or their polling agents, other poll and election officials, security personnel, accredited observers and any other person who in his opinion, has lawful reason to be admitted.

8(a) There shall be separate periods for accreditation and voting.

(b) The accreditation process shall comprise of verification of voters using the Card Reader; checking of the Register of Voters; and inking of the cuticle of the specified finger…”

And by Exhibit B (Press Statement by INEC on the use of Card Reader for accreditation in the April 11, 2015 Elections), the Commission said:

“The Provision of the Guidelines for the conduct of the 2015 General Elections which outlined what is to be done if a Card Reader fails and cannot be replaced by the Commission within a specified time frame (i.e. Reschedule the election to the next day) will be enforced.

2. The relaxation of the Guideline on 28th March, 2015 was only with respect to the Presidential and National Assembly Elections held on that date.

3. The Commission has reviewed the operation of the Card Reader in the 28th March Elections, identified the challenges and has taken adequate measures to address them.”

The Respondents have tried to fault the application of the Card Reader in the accreditation of voters, alleging that it is not in accordance with the accreditation process, under the Electoral Act, and that the Act does not mention the use of Smart Card Reader anywhere, for authentication of Voters’ Card, before voting. They sought reliance on the provisions of Section 49 (1) and (2) of the Electoral Act, which says:

“(1) Any person intending to vote with his Voter’s Card, shall present himself to a Presiding Officer at the polling unit in the Constituency in which his name is registered with his Voter’s Card.
(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.”

I cannot see how the Press statement in Exhibit B, which further explained the use of the Smart Card Reader for authentication of Voter’s Card, to aid in the accreditation of a Voter, as directed by Exhibit C (Approved Guidelines And regulations for the conduct of 2015 General Elections) conflicts with the Electoral Act 2010, or how it undermines the constitutional rights of a voter. Even by Section 49(b) of the Electoral Act, the voter, appearing or claiming right to cast his/her vote, has a duty to satisfy the Presiding Officer, that his name is on the Register of Voters, before he/she could be issued with a ballot paper to vote.

I believe the only way the Presiding Officer can be so satisfied is by authenticating the validity of the Voter’s Card presented by the Voter for the election, the card being the only accepted weapon to qualify him to vote at the election. It is the Voter’s Card that traces the Voter to the Register of Voters. The new and reliable process of authenticating the Voter’s Card is now by the use of the Smart Card Reader, and while the Card Reader authenticates or verifies the Voter’s Card, it also accredits and serializes the number of voters, with authentic Voter’s Cards, who present themselves for voting at each unit/polling point.

I think, the genius electoral mind which conceived of this great devise/idea or contrivance (Smart Card Reader) should be applauded and the devise, celebrated and adopted in our challenging political/electoral land space, as it promises some hope in curtailing or checking the monumental fraud and pretences in our political/electoral development, widely known to thrive in rigging and cheating.

The 1st Respondent had tried to use the dictum of my learned brother, Emmanuel Agim, JCA, in the case of APC v. Agbaje (2015) LPELR 25651 (CA), to fault the use of Card Reader. Of course, that case did not invalidate the use of the Smart Card Reader for authentication and accreditation of Voters for the April 11, 2015 Elections, and could not have.

The failure to use card Reader for accreditation may not qualify as ground to challenge election under Section 138(1) of the Electoral Act, 2010 (as amended), but, I think that, where there is proof that the number of voters accredited by card Reader to vote or as otherwise determined by INEC, is inconsistent with the number of Votes cast at the election, that can be fatal to the election, as it is commonsensical that votes cast at an election should not exceed the number of voters accredited to vote at the election. I think it can be explained, if the vote cast at an election is less than the number of voters accredited to vote, as one can be accredited to vote but fails to vote. But nothing salutary can be said about a situation where the number of votes at an election exceed the number, accredited to vote.

I cannot therefore see the basis of any attack at the use of Card Reader to accredit voters to vote, except where the machine malfunctioned, in which case, I believe INEC made alternative provision, including the use/filling of incident form(s) to accredit those entitled to vote, and/or manual accreditation. See paragraph 7(a) of Exhibit C.

By paragraph 28 of the Approved Guidelines of INEC (Exhibit C), It is expressly stated:

“Where the total number of votes cast at a polling unit exceeds the number of registered Voters in the polling unit, the result of the election for that polling unit shall be declared null and void. Similarly, where the total number of votes cast at the polling unit exceeds the total number of accredited voters the outcome of the election shall be declared null and void.”

But was the alleged non-compliance with the Electoral Act, vis-a-vis, Exhibits A1 to A7, alone, capable of tilting the scale of Justice in favour of the Petitioner (Appellant) in this case?

The trial Tribunal had held on page 768 of the Records, thus:

“However, in this election the result shows that the 1st Respondent scored 18,694 votes while the closest contestant to him, being the Petitioner scored 6,913 votes. The difference between them is 11,781 votes. Learned Counsel for the Petitioner admitted that there was election in Isiala Ngwa North on 11/4/2015. The different (sic) between the Card Reader report which is Exhibits A1 to A7, and Exhibit K, which is summary result as collation for the said constituency, is 27,815 votes cast while the former were 23,786 votes. The total number of registered voters in the whole Local Government Area was put at 62,056 the disparity between the Card Reader data report in Exhibit A1 to A7 and Exhibit K is 4,029, which means it is evidence of manual accreditation. In Gundiri v. Nyako (2014) 2 NWLR it was held by Supreme Court:

“It is the Petitioner who has the burden of proving his Petition where the Petitioner complains with the provisions of the Electoral Act, the Petitioner has a duty to prove the non-compliance.”

I have taken pain to go through all nook and corner of this case, I do not see any reasonable basis for this petition… The Petitioner himself admitted that he won in 3 wards out of 10. This means that he did not win in 7 Wards. The question is who won in the 7 units not won by him? He resiled to say so.”

The above shows that the tribunal below did thorough evaluation of the evidence before it before coming to its conclusion. Of course, there was sufficient documentary evidence as to the accreditation of voters for the election, either by the card Reader or manually, as shown in Exhibits M1 to M134 (Forms EC8A)(1) tendered by the Respondents to the effect that accreditation was done by both the card reader and manually.

The argument that the Exhibits were dumped in the Tribunal without oral evidence to link them to the case cannot be valid in this situation as the documents, being INEC Forms/documents spoke clearly for themselves. A documentary evidence does not require oral testimony to complete it. See Lamire v. Data Processing Maintenance & Services Ltd 2005) 18 NWLR (pt.958) 438; B.F.I. Group v. Bureau of Public Enterprises (2007) LPELR – 8998 CA.

The Lower Tribunal had relied on Section 139(1)(2) of the Electoral Act to validate the election of the 1st Respondent, despite discrepancies relating to Exhibits A1 to A7, by invoking the doctrine that the discrepancies did not constitute substantial non-compliance with the provisions of the Electoral Act. The Section says:

(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 Commissioner to conduct the election.”

There are several judicial authorities on the Section 139 of the Electoral Act, relating to the phrase “Substantial non-compliance” see Ojukwu v. Yar’Adua (2009) LPELR – 2403 (SC); (2009) 12 NWLR (pt 1154) 50, where the Supreme Court agreed about the duty of the Petitioner/Appellant to plead not only non-compliance but also that the non-compliance substantially affected the result of the election. See also Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241; Yusuf v. Obasanjo (2005) 18 NWLR (pt. 756) 181; OKE v. Mimiko (No.2) (2014) 1 NWLR (Pt. 1388) 270; DPP v. INEC (2008) LPELR 4046; Saadu & Anor v. Afolabi & Ors 47 (292) LPELR 7873 CA.

The Respondent’s Counsel had argued that the difference in votes between the scores of the 1st Respondent at the election and that of the Appellant was 11,781 votes; that it became clear that the evidence of the Appellant’s witnesses relating to Exhibits A1 to A7, even if deemed to be established, would have potentially affected less than three thousand of the voters, leaving the 1st Respondent with majority of over seven thousand votes; that the Lower Tribunal, having “taken the pain to go through all nook and corner of this case” was right when it saw no reasonable basis for the petition. Of course, the trial Tribunal had made a similar findings and I tend to agree with them.

Appellant had admitted that the elections held in Isiala Ngwa North Local Government Area of Abia State and had sought that he should be declared the winner of the elections. He had pleaded the scores of the candidates at the elections, and by the scores he came second to the 1st Respondent, who had a wide margin votes difference. Appellant had alleged thuggery, violence, bribery and multiple voting against the conduct of the elections, but by the findings of the lower Tribunal, which had the benefit of seeing, hearing the witnesses and assessing their demeanor, Appellant was not able to prove those allegations. I agree that even if the evidence of Exhibits A1 to A7 and Exhibits B and C (and the votes complained about therein) were to accrue to the benefit of Appellant, that cannot, significantly, alter the scores of the parties, as Appellant would still trail behind the 1st Respondent by over seven thousand votes, if the votes in contention in Exhibits A1 to A7 were deducted from the scores of the parties.

Moreover, by Law, the alleged malpractices complained of, even if established, must be linked, sufficiently, to the Respondents as perpetrators or sponsors, thereof, before they could be made to suffer for same. The law on this has been well developed and expressly pronounced in many judicial decisions. See Section 124(6) of the Electoral Act 2010 (as amended) and the case of Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1; See also the case of DPP and Anor v. INEC & Ors (2008) LPELR – 4046, where it was held that allegation of crime in election Petition must be proved beyond reasonable doubt and must be linked with the Respondent:

“The law is settled that where petitioner fails to establish agency relationship between the perpetrators of the alleged acts of violence with the candidate returned as the winner of the election, then he cannot attribute any offence committed by the agent to the candidate. See also Saadu & Anor v. Afolabi & Ors (2012) LPELR – 7873 (CA).”

I cannot therefore fault the findings of the lower tribunal in this case, and so resolve the issue against the Appellant.

The appeal is accordingly dismissed, with Fifty Thousand Naira N50, 000.00 cost against the Appellant, payable to 1st Respondent.

IGE, JCA

I agree

OHO, JCA

I agree