Duty of a petitioner who alleges over-voting
In the Court of Appeal
In the Yola Judicial Division
Holden at Yola
ON WEDNESDAY, 25TH SEPTEMBER, 2019
Suit No: CA/YL/EPT/AD/SHA/156/2019
Before Their Lordships
CHIDI NWAOMA UWA, JCA
JAMES SHEHU ABIRIYI, JCA
ABDULLAHI MAHMUD BAYERO, JCA
1. ADAMU BABA MUSTAPHA
2. PEOPLES DEMORATIC PARTY
1. HON. KABIRU MIJINYAWA
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
LEAD JUDGMENT DELIVERED BY JAMES SHEHU ABIRIYI, J.C.A.
FACTS OF THE CASE
On March 9, 2019, National and State Houses of Assembly Elections were conducted by the 3rd Respondent throughout the Country. In Adamawa State the 1st Petitioner and the 1st Respondent vigorously contested for the Yola South State Constituency seat. The 1st Respondent was declared the winner of the election on the 10th March 2019 having scored 22,372 votes as against 19,438 votes scored by the 1st Appellant.
Dissatisfied with the declaration that the 1st Respondent won the election the Appellants proceeded to the National and State Houses of Assembly Election Tribunal holden in Yola, Adamawa State to challenge the result and declaration of the 1st Respondent as the winner of the election on the ground that the 1st Respondent was not duly elected by a majority of lawful votes.
At the Tribunal the Appellants prayed for: (i) A DECLARATION that the 1st Respondent was not duly elected by the majority of lawful votes cast at the election. (ii) A DECLARATION that the 1st Respondent was not validly elected, the election having been marred by corrupt practices and non-compliance with the Electoral Act, 2010 and paragraphs 8, 9, 10 and 11 of the INEC’s 2019 Regulations and guidelines for the conduct of Election.
(iii) A DECLARATION of the Honourable Tribunal that the election of Yola South State Constituency of Adamawa State held on the 9th day of March
2019 was marred by irregularities and substantial non-compliance with the Electoral Act, 2010 as amended and therefore null and void.
(iv) AN ORDER mandating the 3rd Respondent to withdraw the certificate of Returns handed to the 1st Respondent, the election of Yola South State Constituency of Adamawa State held on the 9th day of March 2019 having been marred by corrupt practices and noncompliance with the Electoral Act, 2010. (v) AN ORDER mandating the 3rd Respondent to conduct a fresh election for the Yola South State Constituency of Adamawa State.
After considering the evidence led by the petitioners and written addresses of the parties, the Tribunal dismissed the Appellants’ petition. Still dissatisfied, the Appellants appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
Appellants presented the following three issues for determination: 1. Whether the Tribunal fully resolved the issue of proof of over-voting in controversy when it concluded that the Petitioners failed to prove over-voting simply by their non-tendering of voters register having only considered Section 53 (1) & (2) of the Electoral Act, but ignored considering the provisions of Section 53 (1) of the Electoral Act 2010 (as amended) along with paragraph 23 (b) of INEC 2019 Guidelines upon which the Petitioners/Appellants based their pleading and adduced evidence?
2. Whether the Petitioners/Appellants proved irregularities in the election in violation of the provisions of the Electoral Act 2010 (as amended) and the INEC 2019 Guidelines to warrant the lower Tribunal setting aside the election and return of the 1st Respondent as an Honourable Member for the Yola South State Constituency of Adamawa State? 3. Whether on the totality of the evidence on record, the petition was not entitled to succeed?”
APPELLANT’S COUNSEL SUBMISSION
Arguing issue one, Learned Counsel for the Appellants submitted that it is only when a party seeks to prove over-voting under Section 53(2) of the Electoral Act that he would be required to tender the voters’ register. The Appellants in the Tribunal sought to prove the allegation of over voting under Paragraph 23(b) of the Independent National Electoral Commission (INEC) Guidelines, it was submitted. It was submitted that Paragraph 23(b) of the INEC 2019 Guidelines is different from all known decisions on proof of over-voting.
On issue two, Learned Counsel for the Appellants referred the Court to what he said were the appropriate forms prescribed by INEC for the Election to Yola South State Constituency of Adamawa State, on Saturday 9th March, 2010 and submitted that a wrong form EC8A was used instead of form EC8A (1). It was submitted that form EC8A used is completely different from form EC8A (1), which is the appropriate statutory form that ought to have been used. Only polling unit results declared on the appropriate INEC form EC8A (1) enjoy validity, it was submitted. On the other hand, results declared on wrong forms as in this matter on wrong form EC8A are invalid.
RESPONDENTS COUNSEL SUBMISSION
On issue one, Learned Counsel for the 1st and 2nd Respondents submitted that contrary to the submissions of Learned Counsel for the Appellants on their issue one, the Appellants failed to discharge the onus of proving over voting by the standard of proof required by law which cannot and does not exclude the importance of voters register as contended by the Appellants’ counsel. The Court was referred to as LADOJA VS. AJIMOBI & ORS (2016) ALL FWLR (PT 843) 1846 AT 1906 – 1907 and EMERHOR VS. OKOWA (2016) 11 NWLR (PT 1522)1. It was submitted that the Appellant failed to tender the voters’ registers and failed to lead credible evidence of over-voting.
On the submission of Appellants’ counsel that their case of over-voting is based on Paragraph 23(b) of INEC guidelines which deals with “where total number of voters cast exceeded number of accredited voters”, this it was submitted has been settled by the Supreme Court which has consistently rejected the arguments that tend to show that INEC guidelines for the purpose of conduct of an election will not override the provisions of the Principal Act.
It is immaterial, it was submitted, and that the guideline introduces “exceptional innovation” as Learned Counsel for the Appellants put it. It was submitted that over voting is when the total number of votes cast at an election exceeds the total number of voters on the register and nothing else. Therefore the ground of the petition alleging over voting was bound to fail, the voters’ register(s) having not been pleaded.
On issue two, it was submitted that the non-use of form EC8A (1) or the use of form EC8A was not pleaded and what was pleaded was tampering, cancellations and alterations of figures in forms EC8A. Therefore the use or non-use of certain forms was never contemplated by the Appellants. Moreover, there was no evidence to show the effect of use or non-use of the forms on the outcomes of the election. It was submitted that neither the Constitution, the Electoral Act or even the INEC guidelines provide that the non-use of form EC8A(1) in the said election renders the entire process a nullity. It was submitted that Sections 63(1), 74 and 76 of the Electoral Act gives INEC the sole responsibility to determine the forms to be used for the conduct of the election.
RESOLUTION OF ISSUES
Resolving issue one, the Court held as follows: “A Petitioner who alleges over voting must lead concrete evidence to show that there was indeed over voting and that it was to the benefit of the winner of the election. This is because over voting in an election can be in favour of the Appellant, the Respondent or other contestants who participated in the election and lost. The petitioner must, therefore, show that the over-voting was in favour of the Respondent and that it was as a result of the over-voting that the Respondent won the election, that is why the law requires the Petitioner to lead the evidence right from the polling unit in order to show that the alleged over voting was sole to the advantage of the Respondent. In other to prove over-voting, it must be shown that the votes cast at any polling unit were more than those accredited to vote. A party seeking to prove over-voting must tender the voters’ register and a complete card reader report in an election. Any attempt to prove over voting without reference to the voter’s registers is bound to fail. He must also tender the statement of result in their appropriate forms which would show the number of registered accredited voters and the number of actual votes.
Thirdly, he must relate each of the documents to the specific area of his case in respect of which the documents are tendered. Fourthly, he should show that the figure representing the over voting if removed would result in his victory. See SHINKAFI & ANOR VS. YARI & ORS (2016) LPELR – 26050 Pages 32 – 33 and 35 – 36, IKPEAZU VS. OTTI & ORS (2016) LPELR 40055 SC Page 72, LADOJA VS. AJIMOBI & ORS (2016) LPELR – 40658 SC Page 52 TO Page 53, INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR VS. UMANA (2016) LPELR 40039 AT Page 45, OKEREKE VS. UMAHI & ORS (2016) LPELR – 40035 SC Page 60 and WIKE EZENWO NYESOM VS. PETERSIDE & ORS (2016) LPELR – 40036 SC Page 51 TO Page 52.” Issue one was therefore resolved against the Appellants and in favour of the Respondents.
Considering issue two, the Court observed that Forms EC8A, which the Appellants pleaded was tampered with and figures cancelled were not even tendered before the Tribunal. All the documents relied on by the Appellant having been tendered from the bar, the Court held that the Appellants ought to have called a witness to show the Tribunal which of them if any way tampered with and figures altered. This they did not do. This means that no evidence was led to establish that there were cancellations, alterations and that they were dishonestly made. The Appellants also failed to tender two sets of results, the one allegedly tampered with and the figures cancelled or altered and the other not so interfered with.
The Court held that a Petitioner challenging an election result on the ground that it is a false return ought to tender the result he claims to be the true result of the election for the Tribunal to compare the two sets of results. It should be noted that falsification is quite different from mere alteration. See, AUDU VS. INEC NO 2 (2010) 13 NWLR (PT 1212) 456 AT 521, IZUNASO & ANOR VS. UZODINMA & ORS (2015) LPELR – 41835 CA, ABARI & ORS VS. ADUDA & ORS (2011) LPELR – 19750 CA and NWEKE VS. OKORIE & ORS (2015) LPELR – 40650.
The Court held further that where a form originally designed for a particular election is used for another election, unless it can be shown by credible evidence that it was done to give advantage to one party against the other or it has led to a miscarriage of justice or that a party has suffered adversely as a result, this cannot be fatal to the election. See, DANTIYE & ANOR VS. KANYA & ORS (2008) LPELR – 4021 CA, P22 – 24.
In the circumstances, there is no evidence that forms EC8A were used instead of EC8A (1) and that the use of these forms was to the advantage of the Respondents. It has not been shown either that the use of the form EC8A led to a miscarriage of justice. Issue two is also resolved against the Appellants and in favour of the Respondents.
Both issues having been resolved against the Appellants and in favour of the Respondents, the appeal was thereby dismissed.
S. G. Udoh
T. Samuel with him, U. B. Ismaila and U. A. Bello
-For 1st & 2nd Respondents
-For 3rd Respondents
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