Apex court -- Reasons of upholding wike's election

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.