•Peterside, APC failed to prove their allegation of non compliance
•Card reader not sufficient replacement of manual voting
•Tribunal, Appeal Court denied Wike fair hearing
•Tribunal chair ought not to have delivered judgment
The Supreme Court said yesterday that non-compliance with the Independent National Electoral Commission’s (INEC’s) manual and guidelines by officials of the commission in the conduct of the April 11,2015 governorship election in Rivers State was not a sufficient ground to void the election.
Giving reasons for upholding the declaration of Governor Nyesom Wike of the Peoples Democratic Party (PDP) as the winner of the election,the apex court also said that the petitioners at the tribunal-Mr. Dakuku Peterside of the All Progressives Congress (APC) and his party – failed to prove their allegations of malpractices and non-compliance as required.
The court’s seven-man panel led by the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, said that the tribunal and Court of Appeal, which had earlier voided the election, were wrong to base their decisions on the petitioners’ allegations that the INEC officials failed to adhere to the INEC’s manual, guidelines and directives on the exclusive use of the card reader for accreditation and the hearsay evidence presented by the petitioners.
The court reiterated its position that card reader was not a sufficient replacement for manual accreditation and that the non-compliance with the INEC’s manual and guildlines by its officials in the conduct of election was not a sufficient ground to void the election.
The apex court was also of the view that Dakuku Peterside and the APC failed to discharge the burden of proof placed on them having alleged misconduct including violence, disenfranchisement and non-compliance.
The court was of the view that the tribunal denied Wike and his party, the right to fair hearing by allowing a wrong panel to deliver ruling on an application they filed, challenging the competence of the petition.
Justice Kudirat Kekere-Ekun, while giving reasons for the position she took in the lead judgment, held that it was wrong for Justice Suleiman Ambrosa, the later chairman of the tribunal, to have chaired the panel that delivered the ruling on the application by Wike and the PDP when he was not the chairman at the time the application was argued.
Of the 11 issues considered in the appeal, Justice Kekere-Ekun resolved seven in favour of Wike and the PDP and four in favour of Peterside and APC who were listed as respondents in the appeal marked: SC/1002/2015.
The issues resolved in favour of Peterside and APC were those related to preliminary issues of service and locus standi.
Justice Kekere-Ekun noted that but for the fact that the case was an election matter, the error committed by the tribunal, in not according some of the respondents fair hearing was a sufficient ground to have voided the entire proceedings before the tribunal.
In resolving issues one and two, she noted that since the chairman who headed the panel that heard the application was transferred, it was wrong for his successor to have headed the panel that decided the application.
Relying on the provisions of sections 285(4) and 294(1) and (2) of the Constitution, she said: “the remaining two members of the tribunal, who participated in the hearing of the application and delivered opinion therein, could not form a quorum in the absence of the chairman, who participated in the hearing.
“The tribunal was not properly constituted for the delivery of the ruling and therefore lacked the competence to do so. The ruling delivered on September 9, 2015 was without jurisdiction. It is a nullity. It follows that the appellant’s right to fair hearing was breached as there is no resolution of the issues submitted for determination in the said application.
“Having found that the ruling was a nullity, it constitutes a good ground for setting aside the entire proceedings before the tribunal. However, having regard to the fact that this is an election matter, which is sui generis and time bound, and the fact that it would be impossible for the parties to return to the tribunal having regard to the provisions of Section 285(6) and (7) of the Constitution, I deem it proper, in the interest of justice to consider the appeal on its merit.”
On issues six and seven relating to whether or not the petitioners proved their case before the tribunal with the evidence they led, Justice Kekere-Ekun faulted the tribunal’s conclusion and held that the petitioners failed to prove their case as required.
“The case of the 1st and 2nd respondents at the tribunal that the appellant was not duly elected by majority of lawful votes cast was hinged on substantial non-compliance with the provisions of the Electoral Act 2010, the manual for election officials 2015 and the 3rd respondent’s (INEC’s) 2015 general elections approved guidelines and regulations and so, by reason of corrupt practices, which included thuggery, intimidation, harassment of voters, snatching of election materials, lack of result sheets, deliberate resort to manual accreditation to manipulate results, non-allocation of results at ward collation centres, arbitrary allocation of figures in electoral forms, etc.
“It is not in dispute that the appellant was returned as the winner of the election with 1,029,102 votes. The pleadings of the 1st and 2nd respondents show that there is a serious allegation of non-accreditation, over voting and disenfranchisement, which in their view, constituted substantial non-compliance with the Electoral Act,
“The law is well settled that in order to prove over-voting, the petitioner must do the following: tender the voters’ register, tender the statement of results in appropriate forms , which would show the number of registered accredited voters and number of actual votes; relate each of the documents to the specific area of his case in respect of which the documents are tendered, and show that the figure representing the over-voting, if removed would result in victory for the petitioner,
“Furthermore, where the ground for challenging the return of a candidate in an election is by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, the petitioner must prove: That the corrupt practice or non-compliance took place and that the corrupt practice or non-compliance substantially affected the result of the election.
“It would therefore not be out of place to say that both the lower court and the tribunal placed considerable reliance on the testimony of PW49 (INEC official) and the card reader report and exhibits A301, B30, B31 in reaching the conclusion that the 1st and 2nd respondents had successfully proved the alleged discrepancy between the number of voters accredited in exhibit A9 (card reader report) and those reflected in exhibit A10 (Form EC8E series).
“This court, in a number of recent decisions, has commended the introduction of the card reader in the 2015 elections by INEC.
