Why we affirmed Wike’s, Amosun’s elections –Supreme Court

The Supreme Court on Friday explained why it affirmed the election of Nyesom Wike of the Peoples Democratic Party as the governor of Rivers State and that of Ibikunle Amosun of the All Progressives Congress as the governor of Ogun State.

The Abuja Division of the Court of Appeal had affirmed the judgment of the Rivers State Governorship Election Petition Tribunal which had ordered a rerun of the state governorship poll.

Wike had appealed against the decision of the Court of Appeal and all the members of the apex court panel in their unanimous judgment delivered on January 27 overturned the decision of the Court of Appeal and affirmed his election.

The apex court held that both the APC and its candidate in Rivers State in the April 11 poll, Dr. Dakuku Peterside, failed to prove their case of malpractices and non-compliance as required.



Justice Kudirat Kekere-Ekun, held that while the results declared by the Independent National Electoral Commission “enjoy a presumption of irregularity,” the petitioners could only have proved their allegation of non-compliance with the conduct of the election by calling eyewitnesses from about 5,000 voting units in the state.

The court reiterated that card reader was not a sufficient replacement for manual accreditation.

The apex court was also of the view that Peterside and the APC failed to discharge the burden of prove placed on them having alleged misconduct, including violence, disenfranchisement and non-compliance.

The court held 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.

Justice Kekere-Ekun also held that it was wrong for Justice Suleiman Ambrosa, the later chairman of the tribunal, to have gone ahead to deliver ruling on some interlocutory applications earlier heard and reserved for ruling by the former tribunal chairman, Muazu Pindig.

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 election matter, the error committed by the tribunal had denied Wike and the PDP fair hearing.

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.

On the 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.

She said, “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. The court has noted however that its function is solely to authenticate the owner of a voter’s card and to prevent multiple voting by a voter and cannot replace the voter’s register or statement of results in appropriate forms.

“INEC is to be commended for the innovation of card reader to bolster the transparency and accuracy of the accreditation process and maintain the democratic norm of ‘one man, one vote’ by preventing multi-voting by a voter. Nevertheless, Section 49 (1) and (4) of the Electoral Act 2010 (as amended), which provide manual accreditation of voters is extant and remains a vital part of the Electoral law

“In order to prove non-compliance and/ or over-voting, the 1st and 2nd respondents were bound to rely on the voters’ registers in respect of all the affected local governments. The voters’ registers tendered were in respect of only 11 out of 23 local government areas. They were tendered from the Bar as exhibits A271 – A281. No attempt was made to link them with exhibit A9.

“I am of the view and I do hold that the tribunal and the lower court were unduly swayed by the INEC directives on the use of the card readers. As held by this court, the INEC directives, guidelines and manual cannot be elevated above the provisions of the Electoral Act so as to eliminate manual accreditation of voters.

“This will remain so until INEC takes steps to have the necessary amendments made to bring the usage of the card reader within the ambit of the substantive Electoral Act.

In resolving issues 10 and 11, Justice Kerere-Ekun held that the petitioners (1st and 2nd respondents in the appeal) failed to prove their case to warrant the voiding of the election.

She held, “The law is trite that the result declared by INEC enjoys a presumption of regularity. In other words, they are prima facie correct. The onus is on the petitioner to prove the contrary. Where a petitioner complains of non-compliance with the provisions of the Act, he has onerous task, for he must prove it polling unit by polling unit, ward by ward and the standard of proof is on the balance of probabilities.

“He must show figures that the adverse party was credited with as a result of the non-compliance e.g forms Form EC8A, election materials not signed/stamped by the presiding officers. It is only then that the respondents are to lead evidence in rebuttal.”

She said in order to prove their allegation of non-compliance, “it was necessary for the petitioners to call witnesses from all the affected polling units to give first hand testimony of what transpired. Out of the 56 witnesses called by the 1st and 2nd respondents, 18 were wards collation agents, who received information from polling agents in the various units. Their evidence was not tied to any of the exhibits tendered.”

Justice Kekere-Ekun said, “Some of the witnesses (PW19, PW20, PW24 and 35) who were local government collation agents for the 2nd respondents gave sweeping testimony covering four local government areas (Obio Apkpor, Asari toro, Tai and Ikwere) on non-use of card readers, hijacking of materials, illegal thumb-printing of ballot papers, etc.

“The polling agents from the affected wards were not called to testify. Voter’s registers were tendered in respect of only 11 of 23 local government areas and were not demonstrated before the tribunal. Disenfranchised voters from all the affected polling units ought to have been called to testify.

“For the evidence of disruption, violence and corrupt practices to warrant the nullification of the entire election in Rivers State, the 1st and 2nd respondents had to first prove the non-compliance: polling unit by polling unit, ward by ward. They must also establish that the non-compliance was substantial and affected the result of the election.

“Notwithstanding the resolution of issues 3, 4, 5 and 9 against the appellant, I hold that the appellant has shown sufficient reason for this court to interfere with the concurrent findings of the tribunal and the court below.

“It is for these reasons that I allow this appeal on January 27, 2016. The judgment of the Court of Appeal, Abuja Division, delivered on December 16, 2015 which affirmed the judgment of the Rivers State governorship election tribunal delivered on October 10, 2015 was accordingly set aside.”

Justice Kumai Aka’ahs, giving the reasons for the apex court’s decision in the lead judgment with respect to Ogun State governorship election, held that the appeal against Amosun’s election filed by the PDP candidate, Adegboyega Isiaka, lacked merit.

Isiaka and the PDP had challenged the conduct of the election in nine local government areas of Ogun State, namely, Ifo, Abeokuta-North, Abeokuta South, Odeda, Ewekoro, Obafemi-Owode, Ado/Odo/Ota, Sagamu and Remo- North.

The appellants had urged the tribunal to nullify the election on the grounds that “it was marred by malpractices such as rigging, snatching of ballot boxes, thuggery, violence, declaration of false results, falsification of results, importation of thugs from a foreign location, stuffing of ballot boxes with ballot papers, misuse of card readers and permanent voter cards.”

The tribunal had dismissed the appeal on the basis that no credible evidence was adduced to prove the allegations.

The petitioners subsequently appealed to the Court of Appeal, which also upheld the verdict of the tribunal.

They further appealed to the Supreme Court which in its abridged judgment delivered on January 27, 2016, dismissed the appeal.

Justice Aka’ahs held that the appeal was bound to fail on the account of inconsistencies in the report of inspection of electoral materials tendered by the star witness of the appellants (Isiaka and the PDP) and the inadmissibility of the said document.

He also held that to prove the improper conduct of the election in nine local government areas which had 1,672 polling units, the appellants only called nine witnesses out whom only two were eyewitnesses to what transpired in only about 12 polling units.

He held, “Using this evidence extracted from PW9 as a standard to ascertain the weight to attach to Exhibit P4275, the court below held that the evidence of PW9 and exhibit P4275 were worthless.

“One startling aspect of this case is that none of the people such as party agents or polling officers who participated in the conduct of the election in all the places where the election was conducted testified in respect of all the documents used by PW9 and his colleagues in arriving at their report.

Only PW1 and PW7 gave evidence with respect of what they observed during the election and they were the only eyewitnesses whose testimonies were limited to the 12 polling units out of the 1,672 polling units spread across the nine local governments of the state where the election was questioned.

“Giving the nature of evidence adduced by PW9, there is no way where it can be said that the case of the appellant was made out in respect of the nine local government areas in contention.

“Since nobody who was a direct participant in the election gave evidence linking the mass of documents used by PW9 in preparing his report.

“The court below was therefore right when it held relying on Oke vs Mimiko that all the evidence put forward in Exhibit P4275 are nothing but a bundle of primary and secondary hearsay.

“Even if PW1 to PW7 succeeded in establishing that the governorship election conducted by the 3rd and 4th respondents in Ogun State on April 11, 2015 was characterised by non-compliance with provisions of the Electoral Act, the evidence affected only 12 polling units out of 1,672 polling units that were being contested.

“That is not sufficient to nullify the election and the return of the first respondent as duly elected governor of Ogun State because Section 139(1) of the Electoral Act provides that an election shall not liable to be invalidated by reason of non-compliance with the provisions of this Act, if it appears to the election tribunal or court that the election was conducted substantially with the principles of this Act and that the non-compliance did not affect substantially the results of the election.”