Steps to be taken in the process of accreditation of voters

MAIRIGA & ANOR v. ALKALI & ORS (2019) LPELR-48486 (CA)
In the Court of Appeal
In the Makurdi Judicial Division
Holden at Makurdi
ON MONDAY, 16TH SEPTEMBER, 2019
Suit No: CA/MK/EPT/HA/15/2019

Before Their Lordships

JUMMAI HANNATU SANKEY UZO, JCA
STEPHEN JONAH ADAH, JCA
JOSEPH EYO EKANEM, JCA

Between

1. ESSON MAIRIGA
2. PEOPLES DEMOCRATIC PARTY
Appellant(s)

And

1. MOHAMMED IBRAHIM ALKALI
2. ALL PROGRESSIVES CONGRESS (                                      -Respondent(s)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

LEAD JUDGMENT DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.
FACTS OF THE CASE
Election was held for the Lafia North House of Assembly seat in Nasarawa State on March 9, 2019. Several persons contested the election on various platforms. In particular, the 1st appellant contested on the platform of the 2nd appellant, the Peoples Democratic Party (PDP) and the 1st respondent contested on the platform of the All Progressives Congress (APC). The Independent National Electoral Commission (INEC), 3rd respondent, conducted the election. At the close of polls, the 3rd respondent declared the 1st respondent as the winner of the election. Dissatisfied with this declaration, the 1st and 2nd appellants approached the Nasarawa State National and State Houses of Assembly Election Tribunal sitting in Lafia vide a Petition filed on March 30, 2019, seeking for several declaratory orders, foremost amongst which was the declaration that the 1st appellant (and not the 1st respondent) scored the highest votes in the election and so should be declared the winner at the election. In its Judgment delivered on July 24, 2019, the Tribunal dismissed the Petition, holding that the appellants failed to prove their Petition and therefore affirmed the election of the 1st respondent as the House of Assembly Member representing the Lafia North Constituency of Nasarawa State. Yet again dissatisfied, the appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on these issues couched as follows: 1. Whether or not the Tribunal was right when it discountenanced the PW3’s identification of Exhibit P12, the Card Reader Information Sheet. 2. Whether or not the Tribunal was right to dismiss the Petition on the basis that the appellants failed to discharge the burden of proof on them.

APPELLANT’S COUNSEL SUBMISSION
On issue 1, learned counsel for the appellant submitted that on June 19, 2019, the Tribunal overruled the identification of Exhibit P12 by PW3. He argued that in Election Petitions by virtue of Paragraph 5 of the First Schedule to the Electoral Act, 2010, only relevant facts are pleaded and not evidence – Arabambi V A.B. Ind. Ltd (2006) 8 WRN 1, 38. Thus, the Appellants pleaded Exhibit P12 in paragraphs 21, 23 and 24 of the petition and thereafter set it out as number 4 in the list of documents in the Petition.

Evidence of same was also given in paragraph 7 of the Witnesses Statements on Oath of the PW1, PW2 and PW3, as well as paragraphs 16 and 17 of the PW4’s Witness Statement on Oath. He therefore contended that the Tribunal was wrong to have sustained the objection of the 1st respondent and overruled the identification of the document by the witness.

In addition, counsel contended that facts in respect of Exhibit P12 tagged “Voters accreditation figures/records” were pleaded in paragraph 24 of the Petition; and the PW3 in his evidence referred to it as “Card Reader accreditation information received from the 3rd respondent” and that there is no difference between the two. However, assuming without conceding that the appellants referred to the Card Reader machine in their Petition, by the rules of pleadings in election matters, subordinate facts are not to be pleaded but material facts. Thus, any information sourced out from the card reader machine becomes subordinate facts which the petitioners are not expected to plead in their pleadings – Otuo V Nteogwuile (1996) 4 NWLR (Pt. 440) 56, 71-72; Ojoh V Kamalu (2005) 12 SCNJ 236. Counsel therefore submitted that the Tribunal was wrong when it refused the identification of Exhibit P12 by the appellants’ witnesses, and this has occasioned a miscarriage of justice.

On issue 2, learned counsel faulted the finding of the Tribunal that the evidence of the appellants’ witnesses is based on what they were told by their agents simply because they were not tagged as polling units’ agents. Relying on a number of authorities, including Ibrahim V Ogunleye (2012) 1 NWLR (Pt. 1282) 489, 507, F-G, 508, C; & Sijuade V Oyewole (2012) 11 NWLR (Pt. 1311) 280, 312-313, G-B, he submitted that when a witness gives direct evidence of what he saw, experienced or witnessed at the polling unit and did not only relay what some other persons informed him, such cannot be hearsay. Therefore, that the Tribunal was wrong to have shut its eyes to the evidence of these witnesses because from their evidence, they visited all the polling units in their respective wards.

RESPONDENTS COUNSEL SUBMISSION
The 1st respondent in response submitted that the appellants’ case which was predicated wholly on accreditation by Card Reader could not have been sustained because the said Card Reader information tendered from the Bar as Exhibit P12 was never identified, touched, referred to or used by any of the petitioners’ witnesses at the Tribunal. The document was simply dumped and so the Tribunal was correct when it held that it had no power to look at the Exhibit P12 or use it in any way. Reliance was placed on Andrew V INEC (2018) 9 NWLR (Pt. 1625) 507, 558-559, G-C; & Okereke V Umahi (2016) 2-3 SC (Pt. 1).

Learned counsel for the 2nd respondent, on his part, submitted that PW1, PW2 and PW3 who were Ward Collation Agents, were not the makers of Exhibit P12 neither were they present when the documents were made. On the authority of Andrew V INEC (2018) 9 NWLR (Pt. 1625) 557, E-F, he submitted that the Tribunal was right to have overruled the identification of Exhibit P12 by the Appellants’ witnesses.

In response to issue 2, learned counsel for the 1st respondent submitted that the Petition was predicated on a complaint of over-voting in 20 polling units. The complaint of the appellants of over-voting was predicated upon a comparison of the results in Forms EC8A and the figures in the Card Reader. Since the case of the appellants was built on accreditation by Card Reader, counsel referred to the accreditation and voting procedure as set out in the ‘Approved Regulations and Guidelines for the Conduct of Elections 2019’ issued by INEC. Counsel submitted that no election can be said to be conducted without proper accreditation as it is the foundation of a free and fair election. Relying on Section 136 of the Evidence Act, 2011, counsel submitted that the appellants were obliged to prove their assertion that from the accreditation in the Card Reader, the election was characterized by over-voting. He contended that they failed to do this and so the Petition deserved to be dismissed.

On the part of the 2nd respondent, learned counsel on his behalf submitted that the election held in all the Polling Units and Wards complained of was in substantial compliance with the Law and Regulations, contrary to the assertion of the appellants that there was over-voting. He contended that since the appellants asserted that the accreditation was based on only the Card Reader, the burden rested on them to prove this – Section 136 of the Evidence Act, 2011; Okoye V Nwankwo (2003) FWLR (Pt. 156) 1005; & Oyebode V Gabriel (2013) All FWLR (Pt. 669) 1043, 1104.

RESOLUTION OF ISSUES
Resolving issue 1, the Court stated the position of the law that there is a rebuttable presumption that the result of an election declared by INEC, an official body, is correct. That the presumption of regularity inures to it and the maxim in law is omnia praesumuntur rite esse acta, that is, all things are presumed to have been correctly done. See Section 168(1) of the Evidence Act, 2011 (as amended); SeaMarine Int. Ltd V Ayetoro Bay Agency (2015) LPELR-24785 (CA) 28-28; CITEC Int. Estate Ltd V Francis (2014) LPELR-22314 (SC) 444, B-E; Shitta-Bey V AG Federation (1998) LPELR-3055(SC) 54-55, and Aliyu Bello V AG Oyo State (1986) 12 SC 1. The Court held that the burden lies on the party, which disputes the correctness and authenticity of the result to lead rebuttal evidence.

The Court observed that the objection to the identification of Exhibit P12 by the PW3 was anchored on the fact that the witness neither mentioned nor referred to the document, a Card Reader Information Sheet, in his Witness Statement on Oath. Referring to Section 41(3) of the First Schedule to the Electoral Act, 2010 (as amended), and PW3’s Witness’ Statement on Oath, the Court held that it is apparent that even though the appellants in their Petition pleaded the Card Reader Information Sheet, their witness, PW3, never referred to it in his witness deposition to warrant showing him same for his identification. The witness neither linked the document to any part of his evidence nor did he speak to it. It was therefore on this basis that the Tribunal rightly upheld the objection by the respondents to application for the PW3 to identify a document, which was alien and a stranger to his evidence. In this, the Court held that the Tribunal cannot be faulted. Issue one was therefore resolved against the Appellants.

On issue 2, the Court observed that it is manifest that the entire Petition of the appellants at the Tribunal was predicated on allegations of over-voting in 20 polling units spread across three out of the six wards in the constituency. In the pleadings of the appellants, the allegations of over-voting were based upon a comparison of the election results in the Forms EC8A with the figures in the Card Reader, otherwise properly known as the Smart Card Reader (SCR). The appellants also pleaded accreditation by using the Voters’ Register. Therefore, they pleaded accreditation by both the Card Reader and by the Voters’ Register.

Accreditation, the Court held is indeed the foundation or base of every free and fair election. The Court stated that the importance of accreditation is underscored by its inclusion in the Electoral Act, which also provided the legal bulwark, framework and justification for accreditation at every election. From a combination reading of the provision of the Electoral Act and the Regulations and Guidelines, the Court held that it is not in dispute that accreditation is a process which involves the use of the Smart Card Reader to aid in authenticating a voter whose name and other details must be found in the Voters’ Register.

The Court noted that during the pre-hearing session as required, the Parties to the Petition tendered the documents they intended to use at the trial, from the Bar. The Court held that tendering documents from the Bar in Election Petitions is a creation of Statute, the First Schedule to the Electoral Act, and it is aimed at speeding up proceedings before the Tribunal since time is of the essence in election petitions. The Court further held that the tendering of documents from the Bar does not obviate the absolute necessity for the witnesses called by the parties to the Petition to identify and speak to the documents and demonstrate same in order for them to be used by the Tribunal and for any weight to be attached to them. Where any party fails to get his witnesses to speak to the documents tendered and draw attention to the relevant parts of those documents, which they want the Court to look at, it would result in the documents being discountenanced.

The Court noted that as much as the appellants pleaded the Card Reader and the Card Reader Accreditation Sheet said to have been supplied by the 3rd respondent in the petition, neither the Card Reader Machine itself nor the Card Reader Accreditation Information were tendered and used in the evidence of these witnesses. Thus, the Court reinforced the decision of the Tribunal when it held that the documents were simply dumped on the Tribunal.

On proof of over-voting, the Court held that the law is long since settled that recourse must be made to the Voters’ Registers to determine the number of persons accredited therein. Any petition where recourse is not made to the number of persons ticked in the Voters’ Register, is bound to fail. See Ladoja V Ajimobi (2016) 10 NWLR (Pt. 15190 87, 147-148, H-E; Emerhor V Okowa (2016) 2 SC (Pt. III) 2, 27-28, paras 10-20; Okereke V Umahi (2016) LPELR-40035 (SC) 36-38. The Court found that the allegations of over-voting were not proved, and so the petition rightly failed.

In the light of the oral and documentary evidence laid before the Tribunal, coupled with the extant position of the law as stated in the Electoral Act and decided cases, the Court held that the Tribunal was right when it held as it did and dismissed the Petition of the Appellants. Issue two is also resolved against the Appellants.

HELD
In the final analysis, having resolved both issues for determination against the appellants, the Court found the appeal bereft of merit. It was accordingly dismissed.

Appearances:
Ovye John, Esq. with him, A.G. Akawu,Esq.                       -For Appellant(s)
Matthew G. Burkaa, Esq. with him, H. A. Ibrahim, Esq.,
M.E. Usman, Esq., I.H. Nalaraba, Esq. and I.B. Ahmed, Esq.        – For 1st Respondent(s)
Ismail Idris Aseku, Esq. with him, AA. Iliyasu, Esq.
and Abdulkadir Musa, Esq.                    -For 2nd Respondent(s)
A.I.T. Adams, Esq.                    -For 3rd Respondent(s)

Compiled by LawPavilion