Drafting reliefs to seek enforcement of fundamental rights does not bring them under chapter IV of the constitution

Chinye Nnabundo Ike & Anor v. Independent National electoral commission & ORS (2019) LPELR-48801(CA)
In the Court of Appeal

In the Benin Judicial Division

Holden at Benin
On Saturday, 9th November, 2019
Suit No: CA/B/EPT/29/2019

Before Their Lordships:

HARUNA SIMON TSAMMANI, JCA
SAMUEL CHUKWUDUMEBI OSEJI, JCA
BIOBELE ABRAHAM GEORGEWILL, JCA

Between

1. CHINYE NNABUNDO IKE
2. ALL PROGRESSIVE CONGRESS (APC) –
Appellant(s)

And

1 INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2 EMEKA NWAOBI
3.PEOPLES DEMOCRATIC PARTY (PDP)
Respondent(s)

LEAD JUDGMENT DELIVERED BY BIOBELE ABRAHAM GEORGEWILL, J.C.A.

FACTS OF THE CASE
This is an appeal against the judgment of the National and State Houses of Assembly Election Tribunal, Delta State, sitting in Asaba, Delta State.

The facts of the case are that in the election held into the Aniocha North State Constituency in the Delta State House of Assembly on 9/3/209, the 2nd Respondent was declared the winner of the said election by the 1st Respondent.

The Appellants were aggrieved with the outcome of the said election and approached the Tribunal to vide their Petition filed on 29/3/2019, seeking some reliefs against the Respondents. The parties filed and exchanged their pleadings together with the written statements on the oath of their witnesses. After the pre-hearing sessions, the matter proceeded to hearing and parties gave evidence.

At the close of their respective cases, the parties filed and exchanged their final written addresses, which were subsequently duly adopted by the counsel. On 17/9/2019, the Tribunal delivered its judgment dismissing the petition of the Appellants. Dissatisfied with the decision, the Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on a sole issue couched thus:
“Whether the Lower Tribunal was right in holding that the Appellants failed to prove improper accreditation as required by law?”

APPELLANT’S COUNSEL SUBMISSIONS
The Appellant submitted that no lawful election can take place without strict compliance with the accreditation requirement in that any votes cast in the face of non-accreditation or improper accreditation are unlawful, and contended that by virtue of Section 49 of the Electoral Act 2010 (as amended), they proved that there was no accreditation/or that accreditation was improper via the primary proof of evidence and gave evidence. Reliance was placed on Fayemi V. Oni (2009) All FWLR (Pt. 493)1254.

It was further submitted that in law, the issue of card reader forms part of the procedure of accreditation and the Court has a duty to ensure that the procedure laid down by the Guideline and Manual for election as it relates to accreditation must be followed. Appellant’s urged the Court to invoke its powers under Section 15 of the Court of Appeal Act to review and evaluate the evidence in the printed record. Reliance was placed on Ali V. Danlele & Ors (2015) LPELR-40362 (CA).

RESPONDENT’S COUNSEL SUBMISSIONS
The Respondents submitted that it was incumbent on the Appellants who alleged non-compliance with the Electoral Act to establish their allegations and to show how the alleged non–compliance if proved, had substantially affected the results of the said election and contended that save the bare averments of the Appellants, they failed woefully to prove their allegations by credible evidence. Reliance was placed on Chime V. Chime (2001) 3 NWLR (Pt. 701) 527.

It was submitted that a Petitioner who alleges over voting needs to tender the register of voters for the entire constituency, the ballot boxes containing the ballot papers and the results from all or at least, the affected polling stations in the constituency and contended that it was not just enough for the Appellants to point at or tender voters register without more and no demonstration to prove non-compliance with the provisions of the Electoral Act.

It was also submitted that the Appellants never tendered any smart card reader through any of their witnesses or demonstrated non-accreditation from the documents dumped on the tribunal. Yet, the Appellants were expecting the tribunal to have demonstrated their petition for them and contended that assuming without conceding that the smartcard readers were not used as repeatedly stated by the Appellants, that alone will not have led to the nullification of the election.

RESOLUTION OF ISSUES
In resolving the sole issue, the Court proceeded to determine what pieces of evidence was led by the Appellants in proof of their allegations of corrupt practices and substantial non-compliance by reason of non-accreditation against the conduct of the questioned election on 9/3/2019 and the results showing that it was the 1st Appellant rather than the 2nd Respondent that scored a majority of the lawful votes cast at the questioned election and ought to have been so declared as elected by the 1st Respondent?

In addressing this, the Court pointed out that electoral results are by law, presumed to be regular unless and until rebutted by credible evidence to the contrary and that proof of an allegation of corrupt practices and substantial non- compliance with the provisions of the Electoral Act 2010 (as amended) against an election is not a tea party, which one party merely alleges against the person declared as winner by the umpire and then, folds his arms akimbo to see how the other party wriggles out of it. That because such allegation of corrupt practices is by all standards criminal in nature, it must be proved beyond reasonable doubt as required by law. See Section 135 of the Evidence Act 2011.

Also, that even where an allegation of corrupt practices has been made by a Petitioner in an election Petition, he must still go a step further to show by concrete, credible and probable evidence, not metaphysical evidence that exists only in the realm of conjecture, that the person declared the winner and returned as elected by the electoral body was either personally involved or directly instrumental to or influenced the corrupt practices that took place during the said election. Reliance was placed on Chibuike & Anor V. Okonkwo &Ors (2015) LPELR – 40683 (CA) 27. That the petitioner was under the duty, first to prove the occurrence of acts or omission constituting the fact of non-compliance and then, a greater duty to prove that the non-compliance was substantial and had indeed, affected the result, the outcome of the election. These two conditions must co- exist so much so that a proof of one without the other will not result in invalidation of an election at the instance of such a Petitioner. Reliance was placed on PDP V. INEC (2014) 17 NWLR (Pt. 941) 1.

Thus, according to the court, of all the six witnesses, called by the Appellants, none was either a polling unit agent or presiding officer, who played any role at the polling unit, which is the base of the pyramid and where the process of accreditation is key. That these witnesses were at best, Ward agents, having nothing to do with the process of the election at the polling units and as such, are incapable of proving non-accreditation. Also, that the admission by almost all the appellant witnesses that election took place and that they were also accredited and did cast their votes in their respective polling units contradicted the allegation by the Appellants that there was no accreditation. That the Appellants also failed to demonstrate in their evidence, how non-compliance in respect of all or some of the units in Ward 8 would have amounted to substantial non–compliance with the Electoral Act 2010 (as amended) in the remaining nine other wards 1, 2, 3, 4, 5,6 7, 9 and 10 in the questioned election.

On whether the mere non-use of the card reader, even if alleged and proved by a Petitioner, is capable of vitiating an election otherwise valid? The Court held that this cannot be and that by law, the non-use of card reader by the 3rd Respondent, without more, will not render an election invalid and thus, cannot form the sole basis for the nullification of the election conducted by the 1st Respondent under the Electoral Act 2010 (as amended).

The Court resolved firmly that notwithstanding the voiding of the 17 votes in unit 8 of ward 10 where non-accreditation was proved by the Appellants, the Tribunal was perfectly right when it held that this proved act of non–compliance in just one unit 8 of ward 10 did not substantially affect the entire result declared in the election.

HELD
The Court dismissed the appeal for lacking in merit.

Appearances:
Habeeb Lawal, Esq.
– For Appellant(s)

G. E. Adole, Esq.
– For 1st Respondent

J. I. Odibeli, Esq. with him, Y. O. Odiase, Esq. – For the 2nd Respondent

P. O. Eruayebure, Esq. – For the 3rd Respondent

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