Livinus Gwaza Ujamatyu & Anor V. Titus tyoapine Uba & ORS
CITATION: (2019) LPELR-48859(CA)
In the Court of Appeal
In the Makurdi Judicial Division
Holden at Makurdi
On Wednesday, 13th November 2019
Suit No: CA/MK/EP/HA/50/2019
Before Their Lordships:
ITA GEORGE MBABA, JCA
ONYEKACHI AJA OTISI, JCA
JOSEPH EYO EKANEM, JCA
1. LIVINUS GWAZA UJAMATYU
2. ALL PROGRESSIVES CONGRESS (APC)
1. TITUS TYOAPINE UBA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE RETURNING OFFICER, BENUE STATE HOUSE OF ASSEMBLY, KYAN STATE CONSTITUENCY
LEAD JUDGMENT DELIVERED BY JOSEPH EYO EKANEM, J.C.A.
FACTS OF THE CASE
This appeal is against the judgment of the National and State Houses of Assembly Election Tribunal, Makurdi, Benue State.
The fact of the case is that on 9/3/2019, the 3rd respondent conducted elections throughout Nigeria for seats in the Houses of Assembly of the States of the Federation. In Benue State, the 1st appellant, sponsored by the 2nd appellant, contested the election against 15 other candidates, sponsored by their parties, including the 1st respondent who was sponsored by the 2nd respondent. At the end of the process, the 3rd respondent declared and returned the 1st respondent as elected.
Aggrieved by the return, the appellants filed a petition at the tribunal, questioning the election. Issues were joined, a pre-hearing session was conducted by the tribunal and a pre-hearing report was issued. The petition proceeded to a hearing, after which the tribunal dismissed the petition for the reason that the appellants failed to discharge the burden of proof placed on them by the law. Dissatisfied, appellants appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The court determined the appeal on the following issues:
1. Whether or not, the tribunal was right in striking out ground 2 of the petition and paragraphs 1, 2, 3, 5 and 6 of the appellants’ reply.
(2) Whether or not the tribunal was right in not admitting the receipt for payment for certification of electoral forms.
(3) Whether or not the tribunal was right in dismissing the petition of the appellants.
APPELLANT’S COUNSEL SUBMISSIONS
On issue one, Appellant submitted that by Section 138(1) of the Electoral Act, 2010 (as amended) and Section 160 of the Constitution of Nigeria, 1999 (as amended), INEC is empowered to make rules or guidelines to regulate the conduct of an election. That the Manual for Election Officers 2019 was made pursuant to that power and the Manual is part and parcel of the Electoral Act. It was therefore submitted that a reference to the Manual cannot be said to be a violation of Section 138(1)(b) of the Electoral Act, which he said does not require that it be quoted verbatim. Furthermore, the petition contained facts pointing to non – compliance with the Electoral Act, ground (b) ought to have been maintained as they are not a repetition of the appellants’ petition.
On issue two, it was submitted that there was no need to plead and list receipt of payment for certification of forms EC8 series and other documents before it became admissible in evidence. It was argued that without payment made to INEC, the said documents would not have been issued to the appellants. The Appellant then proceeded to pray the court to admit the Permanent Voters’ Cards of PW2 to PW7 as, according to him; they were wrongly rejected by the tribunal for not being pleaded.
On issue three, Appellant submitted that the election was not properly conducted in 68 polling units with a total of 36,561 registered voters and that there were irregularities in the election which was corroborated by voters in various polling. It was submitted that the evidence of the witnesses remained unchallenged and that the tribunal was not right in rejecting the evidence of PW2, PW4 and PW22 on the basis that they adopted written depositions of other persons.
Appellant’s summarized how the accreditation of voters was done and submitted that when accreditation has actually taken place, the number of voters on the register of voters and the number on the card reader accreditation are supposed to be the same. This was, however, not the case in the 68 polling units challenged by the appellants of which he said there was no accreditation of any kind.
RESPONDENT’S COUNSEL SUBMISSIONS
On issue one; Respondents submitted that by the doctrine of stare decisis, the tribunal was right in striking out ground 2 of the petition. Also, that even if it is held that the tribunal was wrong, the appellants would not have suffered any miscarriage of justice as they in their petition, adopted facts pleaded in support of ground 1 as facts in support of ground 2.
On issue two, Respondents submitted that the appellants were in possession of the receipt of the fees paid to INEC prior to certification of the document before they filed the petition but did not plead it in the petition. That this violated paragraphs 4(1)(d) and (5)(c) of the 1st Schedule to the Electoral Act.
On issue three, the Respondents submitted that the findings were not challenged in the appeal and as such, the appellants are deemed to have accepted them and that the evidence of PW1 and PW15 are hearsay evidence as they were not eyewitnesses of events at the polling units. He placed reliance on Oke v Mimiko (No. 2) (2014) 13 NWLR (PT.1388) 332, 376.
Furthermore, the tribunal was right in not giving probative value to the Smart Card report sheet tendered through PW21 as the document was dumped on the tribunal.
In respect of over-voting, reliance was placed on Ikpeazor v Otto (2016) LPELR – 40055 (SC) that over-voting was not proved.
RESOLUTION OF ISSUES
In resolving issue one, the court stated that the provision of Section 138(1)(b) of the Electoral Act, 2010 (as amended) that an election may be questioned on the ground that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act, is expected to be copied word for word as held by the court in Ojukwu v Yar’adua (2009) 12 NWLR (PT. 1154) 50, 121 while interpreting Section 145(1) of the Electoral Act, 2006. According to the Court, a petitioner can also use his own language to convey the exact meaning and purport of the subsection but a petitioner cannot go outside the ambit of Section 145(1) of the Act. In other words, he cannot add or subtract from the provision of Section 145(1).
The court held in line with the decision in Nyesom v Peterside (2016) 7 NWLR (PT. 1512) 452, that the effect of the addition of the words “… the Manual for the Election Officials” or the like, will depend on whether or not the non-compliance complained of relates only to the Manual or Approved Guidelines, or it can be traced to the provisions of the Electoral Act itself. In the former case, it renders the ground invalid. In the latter case, it is valid since it is traceable to the Electoral Act and is therefore covered by Section 138(1) thereof. In the instant case, the Appellants did not set out the facts in the petition that demonstrates to the court how the decision of the tribunal under review was wrong.
Furthermore, the court held that the tribunal was right in striking out paragraphs 1, 2, 3, 5 and 6 of the appellants’ reply to 1st respondent’s reply as upon an examination of paragraphs 1, 2, 3, 5 and 6 of the appellants’ reply, they do not deal with new facts in the 1st respondent’s reply but a repetition of facts in the petition.
On issue two, the court held that the fact that the documents certified pre-dated the receipt is not sufficient ground for the rejection of the receipt. As to the ground that the receipt was not pleaded, the court held that it is the law that only material facts need be pleaded and not evidence to establish those facts and that since the receipt was tendered to show payment for certification of INEC documents, there was no need to plead it. Since the INEC documents were pleaded and admitted in evidence, the receipt also ought to have been admitted as it was in the nature of an accompaniment to the INEC documents. According to the court, the tribunal erred in rejecting the receipt and proceeded to set aside the ruling and admitting the INEC official receipt No 210498 as Exhibit P145A.
On issue three, the court began by restoring the evidence of PW2, PW4, and PW22 as nothing on record indicated that they adopted the depositions of other persons. In addressing the main issue, the court held that it is trite that there is a presumption of correctness and authenticity of an election result declared by INEC and the burden of disproving this lies on the party (the Petitioner), who disputes the correctness and authenticity of the result to lead rebuttal evidence. It further held that the burden in the instant case was on the appellants to lead evidence before the tribunal to rebut the presumption of correctness and authenticity of the declaration of the 1st respondent as the winner of the election by the 3rd respondent.
Furthermore, the testimony of PW1 (the 1st appellant) of events at the polling units, especially alleged non-accreditation of voters and other irregularities was hearsay. This is because evidence of what occurred at the polling units ought to have come from those who served there, preferably polling agents. Oke v Mimiko (2014) 12 NWLR (PT. 1388) 322, 376. That the fact that the electoral documents were tendered through him does not change the fact that his evidence was hearsay neither does it make the documents reliable. Again, that PW1 not being the maker of the documents could not answer questions on them and so, the probative value could not be attached to them. It is immaterial that those documents were certified true copies of public documents.
On the allegation of disenfranchisement, the court held that this cannot be proved without the evidence of duly registered voters in the relevant polling units, who were denied the opportunity to vote. Ngige v INEC (2015) 1 NWLR (PT. 1440) 218.
Finally, the court held that it is not our law that only voters accredited by means of the Smart Card Reader are entitled to vote in an election. That Section 49(1) and (2) of the Electoral Act, 2010 (as amended) provides for manual or analogue accreditation of voters. So, any registered voter whose name is found on the register of voters by the Presiding Officer through manual check of the register of voters is entitled to vote. That it has been held over and over by the Supreme Court that the Smart Card Reader cannot depose or dethrone the register of voters or that it has not put an end to manual accreditation, as decided in Nyesom v Peterside (2016) 7 NWLR (PT. 1512) 452.
In conclusion, the court dismissed the appeal for lacking merit.
S. A. Akpehe, Esq.-For Appellant(s)
Chief E. K. Ashiekaa (SAN), with him, S. A. Odaga, Esq. and A. I. Wombo, Esq. for 1st Respondent.
J. S. T. Anchaver, Esq, with him, C. A. Gbehe, Esq, S. E. Irabor, Esq, B. A. Iorheghem and R. G. Okplogidi, Esq., for 2nd Respondent.
B. A. Abdusalam, Esq., With him, J. T. Garba Esq., for 3rd and 4th Respondents.
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