CORAM

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PARTIES

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VRATI S. NZONZO & ANOR APPELLANTS

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MYANASA BAUNA & ORS RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The 3rd Respondent (INEC) conducted election for the seat of member, representing Lamunde Constituency in Adamawa State House of Assembly. At the conclusion of the election, the Electoral Officer for the Local Government nullified elections in five polling units and declared the election inconclusive. On 12th March, 2019, the National Headquarters of the 3rd Respondent issued a directive that supplementary election would take place on 23rd March 2019, in all the polling units where the election was cancelled. It was alleged that before the date fixed for the supplementary election, the Electoral Officer for the Local Government conducted the election on 12th March 2019. At the conclusion of the supplementary election, the 3rd Respondent declared the 1st Respondent as the winner of the election. The 1st Appellant who contested the election on the platform of the 2nd Appellant, (APC) scored a total vote of 11,477, while the 1st Respondent scored 14,611 votes, the margin of lead between the Appellants and the 1st and 2nd Respondents is 3,134 votes. The 1st Respondent was declared and returned as duly elected and a certificate of return issued to him accordingly. The 1st and 2nd Appellants who were not happy with the declaration, filed a joint petition before the Tribunal to challenge the election and declaration of the 1st Respondent as the winner of the election. In its judgment, the Tribunal dismissed the petition and held that the Appellants did not prove any of the grounds of the petition. Dissatisfied with the said judgment, the Appellants have appealed to this Court.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the 1st and 2nd Appellants did not discharge the onus of proof of their petition and equally showed that the non-compliance substantially affected the result of the election? Whether the Tribunal was not in error when it held that the Appellants waived their right to challenge the supplementary election of 12th March, 2019 and whether Exhibit N, the Press Release from the 3rd Respondent which was admitted in evidence has no evidential value?”

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RATIONES DECIDENDI

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SUPPLEMENTARY ELECTION – EFFECT OF A PARTY CONSENTING TO THE HOLDING OF RESCHEDULED ELECTION

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“The position of the law is clear as to when a supplementary election results are challenged by a party that fully participated in it. In a similar situation, in the case of Sylva & Anor Vs. INEC & 2 Ors (2018) (supra), the Supreme Court held that the Appellants by participating in the rescheduled election by their conduct had consented to the holding of the supplementary election and can no longer protest about the holding of the election and the results. By their participation in the rescheduled election shows that by their conduct, they had waived their right to protest and were caught up by the cob-webs of both waiver and estoppel.”

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SUPPLEMENTARY ELECTION – WHETHER A PARTY WHO PARTICIPATES IN A SUPPLEMENTARY ELECTION CAN CHALLENGE THE VAILIDITY OF SUCH ELECTION

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“The position of the Apex Court on this is clear, once a party participates in a supplementary or re-run election, scheduled by INEC, he would not be allowed to challenge the validity of the re-run or supplementary election as he would be deemed to have waived his right, this Court is bound by the above decision. See, the recent case of Adegboyega Isiaka Oyetola Vs. Senator Ademola Nurudeen Adeleke & Ors (2019) LPELR – 47529 (CA) PP. 65 – 69.”

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PROOF OF NON- COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT – ON WHOM LIES THE ONUS OF PROOF IN AN ALLEGATION OF NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT

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“….it is trite that the onus of proof in an allegation of non-compliance lies on the appellants to establish the substantial non-compliance as alleged by the provisions of the Electoral Act and to show that it did or could have affected the result of the election, see Section 139(1) of the Electoral Act, as amended. See, Buhari Vs. Obasanjo (2005) (supra) at PAGE 222 PARAS. A – C.”

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INDEPENDENT ELECTORAL COMMISSIONS’ ELECTION MANUAL & GUIDELINES -WHETHER THE PROVISIONS OF THE INDEPENDENT ELECTORAL COMMISSIONS’ ELECTION MANUAL AND GUIDELINES SUPERSEDES THE PROVISIONS OF THE ELECTORAL ACT

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“The provisions of the Manual and Guidelines cannot supersede the provisions of the Electoral Act, 2010 (as amended) which made provision for manual voting under Section 49(1) and (2) of the Electoral Act, 2010 (as amended) which laid down the procedure to be followed in an election. Section 49(1) and (2) provide as follows:
1.“A person intending to vote with his voter’s card, shall present himself to a Presiding Officer at the polling unit in the Constituency in which his name is registered with his voter’s card.
2.The Presiding Officer shall, on being satisfied that the name of the person is on the register of voters, issue him a ballot paper and indicate on the Register that the person has voted.”
From the above provision, nothing was said about accreditation or any other purpose of the Smart Card Reader. On the other hand, it clearly shows that the Electoral Act supersedes the Manual and Guidelines by the 3rd Respondent (INEC) and that it is from the voters register that the total number of registered voters would reflect, as well as the number of accredited voters who would vote and who voted. Those that voted would be shown on the voters register not exclusively from the Smart Card Reader relied upon by the Appellants. See, Nyesom Vs. Peterside (2016) 7 NWLR (PT. 1512) 417, 522, PARAS. B – C. Further, it is only the presiding officer who filled Form EC8A(1) the statement of result of poll and the party agents who signed and were given copies of the results that can give admissible evidence before the Tribunal on the Forms. The witnesses that testified on behalf of the Appellants were ward collation officers who testified in respect of Forms delivered to them by the party agents, their evidence is therefore documentary hearsay and is inadmissible in evidence and where it is admitted as in this case should not be acted upon. See, Buhari Vs. Obasanjo (supra), Andrew Vs. INEC (2018) 19 NWLR (PT. 1625) 523 at 557, INEC Vs. Peterside (2016) 7 NWLR 452, 570 – 572, Okereke Vs. Umahi (2016) 1 NWLR (PT. 1529) 438 at 480, PARAS. B – D, Nyesom Vs. Peterside (supra) and Gundiri Vs. Nyako (2014) 2 NWLR (PT. 1391) 211 at 245, PARAS. C – D.”

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ELECTION RESULT – WHETHER FIGURES OBTAINED FROM THE SMART CARD READER SUPERCEDES THE STATEMENT OF RESULTS OF THE POLLS IN APPROPRIATE FORMS

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“It is settled law that statement of results of polls in Form EC8A(1) supersedes figures obtained from accreditation by the Smart Card Reader Report. The Smart Card Reader is only to authenticate the owner of the voters’ card and prevent multiple voting by a voter, it cannot replace the Voters Registers or Statement of results of the polls in appropriate Forms”.

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DOCUMENTARY EVIDENCE – STATUS OF DOCUMENTS TENDERED FROM THE BAR NOT LINKED TO EVIDENCE OF WITNESSES

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“The documents tendered from the bar were also not linked to the evidence of the witnesses that testified on behalf of the Appellants at the Tribunal. See, Ikpeazu Vs. Otti (supra) and Ucha and Anor Vs. Elechi (supra). The polling unit results, Exhibits E1, H1, H2, H3, C3, C4, D2, F, G1, G2, G3, P, P2, PW3 and P4 were not demonstrated by the Appellants’ witnesses in Form EC8AII. I cannot fault the view of the Tribunal that the witnesses called by the appellants did not link their evidence with the documents that were dumped on the Tribunal, the Tribunal was right to have disregarded them as not having any evidential value. The appellants failed to discharge the onus of proof on them and failed to prove non-compliance which substantially affected the result of the election.

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Electoral Act, 2010

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