➥ CASE SUMMARY OF:
Akeredolu & Anor v. Mimiko & Ors. (2013) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC. 352/2013
➥ JUDGEMENT DELIVERED ON:
Thursday, August 29, 2013
➥ AREA(S) OF LAW
Injection of votes.
➥ PRINCIPLES OF LAW
⦿ IMPORTANCE OF AUTHENTIC REGISTER OF VOTERS
Again, let me pause here to observe that the importance of an authentic Register of voters for an open and transparent election process cannot be underestimated. Not only that the candidate who intends to contest in a particular election is required to be a registered voter as per the Register of voters, also a person who is minded to cast his vote in an election must be a Registered Voter as per the register of voters to be enabled to cast his vote in an election. — C.M. Chukwuma-Eneh, JSC.
⦿ MEANING OF NON-COMPLIANCE WITH REGARDS TO ELECTION
Construing the word “non-compliance” in both provisions with regard to an election has created a situation where an election has been conducted in a manner not in accordance with the provisions of the Act and/or the guidelines prescribed therefrom. — C.M. Chukwuma-Eneh, JSC.
⦿ WHERE CIVIL AND CRIMINAL INGREDIENTS ARE INTERTWINED IN AN ELECTION PETITION
I take the line of thought of the respondents in that it is not enough to allege, non-compliance with the Electoral Act, the Petitioner now Appellant ought to establish by concrete evidence not only the non-compliance but that it was substantial to vitiate the election. Nothing other than that would suffice. Also the petitioner cannot run away from his responsibility on the burden of proof and on-whom it lies. In the present circumstances, the allegations are civil in character as well as criminal and so intertwined or interwoven as to make severance of one genre from the other which is impossible. Therefore the standard of proof must be of the higher standard which is beyond reasonable doubt. It is when the petitioner has discharged the onus on this that the burden can shift to the respondents to see how far he can go to impugn such a rock solid evidence put forward by the appellant. That is the prescription of law in practice and there is no running away from it See Awofowo v Shaman (1979) 1 ALL NLR 120 at 126: Buhari v Obasanjo (2005) 13 NWLR (Pt. 941). — M. Peter-Odili, JSC.
⦿ TO PROVE NON-COMPLIANCE MUST ALSO SHOW THAT NON-COMPLIANCE AFFECTED THE RESULTS OF THE ELECTION
It is basic that for a petition to succeed on non-compliance with the provision of the Electoral Act the petitioner must prove not only that there was non-compliance with the provisions of the Act, but also that the non-compliance substantially affected the result of the election. See: Section 139 of the Electoral Act 2010, as amended. Put in other words, the petitioner has to prove:- (1) That there was non-compliance. (2) That the non-compliance substantially affected the result of the election. The above have been variously pronounced in the cases of Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 435; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 80; Akinfosile v. Ijose (1960) SCNLR 447; Awolowo v. Shagari (1979) 6-9 SC 51; CPC v. INEC & Ors. (2011) 12 SCNJ 644 at 710. — J.A. Fabiyi, JSC.
⦿ DEFECTIVE VOTERS REGISTER USED FOR AN ELECTION
Whereas the process of compiling a Voters Register is a pre-election matter, the use to which an alleged fundamentally defective Voters Register so compiled is put to in an election which may substantially affect the result of the said election is clearly an issue of non-compliance with the provisions of the Electoral Act, which constitutes a ground for challenging an election in a petition under section 138(l)(b) of the Electoral Act, 2010, as amended. — W.S.N. Onnoghen, JSC.
⦿ IF NO PERVERSITY IS SHOWN, FINDINGS OF FACT WILL NOT BE DISTURBED
The trial Tribunal and the court below have arrived at concurrent findings of fact and the attitude of the Supreme Court is replete in a number of judicial authorities which is that except there is established miscarriage of justice or violation of some principle of law or procedure or the findings are perverse the Supreme Court will not disturb such findings. See ADAKU AMADE V. EDWARD NWOSU (1992) 6 SCNJ 59. ONWUJUBA V. OBIENU (1991) 4 NWLR (PART 188) 16; OGUNDIYAN V. STATE (1991) 3 NWLR (PART 181) 519; IYARO V. THE STATE 1 NWLR (PART 69) 256. The list is indeed inexhaustive. I do not find the findings of fact bedeviled by any of these lapses. — Alaoga, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
C.M. Chukwuma-Eneh, JSC.
⦿ FOR THE APPELLANT
S.A. Orkumah, Esq.
⦿ FOR THE RESPONDENT
Chief Wole Olanipekun SAN
Yusuf Ali SAN
Dij Onyechi ikpeazn SAN
➥ CASE FACT/HISTORY
Briefly stated, the facts are that on the 20th October 2012 the 3rd respondent conducted the Governorship Election in Ondo State. The 1st appellant being the Governorship candidate of the 2nd appellant contested the election with other candidates from other political parties one of whom is the 1st respondent who was a candidate for the 2nd respondent. By the result announced on the 21st October, 2012 the 1st respondent was declared winner of that election. The appellants being dissatisfied with the result so declared filed a petition on the 9th day of November 2012 before the Tribunal. The respondents filed their respective replies and the appellants then filed their replies to what the respondents put forward.
At the end of evidence and addresses of counsel the tribunal delivered its judgment dismissing the petition hence the appeal to the Court of Appeal which in turn dismissed the appeal on the ground that the tribunal was right in discountenancing the evidence-of the expert witnesses. Also that though the voters register used for the election did not comply with the mandatory provisions of the Electoral Act as complained of by the Petitioners/appellants, but they did not prove the substantiality of the non-compliance and how it affected the result of the election. Again dissatisfied, the appellants came before the Supreme Court.
This is an appeal from the judgment of the Court of Appeal situated at Akure Ondo state delivered on the 1st of July 2013. The said appeal was from the judgment of the Ondo State Governorship Election Petition Tribunal sitting at Akure delivered on 3rd of May, 2013.
➥ ISSUE(S) & RESOLUTION(S)
Having regard to the admissible evidence led by the appellants in support of their petition vis-a-vis the state of the law on the burden and standard of proof as well as the reliefs sought in the appellant’s petition, whether the lower court was not right in affirming the decision of the trial tribunal, dismissing the appellant’s petition?
A. THAT FOR NON-COMPLIANCE TO NULLIFY AN ELECTION, IT MUST SHOW IT AFFECTED THE COMPLAINING PARTY
“The 3rd respondent has practically argued to the effect that Section 138(1) (b) literarily has to be read subject to Section 139(1) and I agree. Again, they must be read conjunctively to achieve the lawmaker’s intention, in this regard an election cannot be vitiated for non-compliance unless and until the election sought to be vitiated is also further showed conclusively where the standard proof so requires it, that the non-compliance has also substantially affected the result of the election in other words the appellants have to establish that but for the non-compliance they would otherwise have scored a majority of lawful votes over the number of votes cast for the 1st respondent. Meaning in the context of this matter that going arithmetically that by subtracting the said over 100,000 illegal votes from the votes cast in favour of the 1st respondent here in the election that the votes cast in their favour would have come tops to that of the 1st respondent In practical terms that is what the respondents’ argument here has represented. The appellants’ argument as per their above cited paragraph 8.07, with respect, is misconceived and unacceptable, it is wrong on the facts and circumstances of this matter or the applicable law to hold that the invalidity of the election automatically flows by operation of law under Section 138(1) without adverting to the further duty on the appellants to show that the non-compliance having been proved has substantially affected the outcome of the election.”
“And so, upon the meaning of non-compliance with the Act and for the plea to avail a petitioner in an election petition as the instant one it goes without more that the petitioner has to further prove that he would otherwise have won the election fair and square but for the illegitimate acts or omissions tantamounting to non-compliance as in this case by INEC i.e. the 3rd respondent (INEC) in the said election process.”
“As I have showed herein to place such burden on the respondents will thus render the instant non-compliance as an exception under Section 139(1) and clearly it is based on a misconception of the provisions of the Act and is without any doubt misplaced and it is accordingly unacceptable. The second limb of section 139(1) is as much a part of the said section as the first limb that the two limbs of the section must therefore be construed conjunctively and as l have said herein as each limb throws some light on the other.”
B. THAT EVEN IF THE 100,000 VOTES ALLEGEDLY INJECTED WERE REMOVED, THE RESPONDENT STILL WINS
“But assuming without conceding that proof beyond reasonable doubt was attained, the Appellant had to prove the effect of the injection of 100,000 names in the Voters’ Register on the outcome of the election. Even if it is proved that all the alleged 100,000 voters injected into the Voters’ Register turned out and voted for the 1st Respondent, it will be necessary to deduct the 100,000 votes as illegal votes for the 1st Respondent’s total scores. The simple arithmetic will be 1st Respondent’s total votes of 260,199 less the alleged 100,000 illegal votes. The result is 160,199 votes which is 16,687 votes in excess of Appellant’s 143,512 votes.”
“Consequently, I hereby dismiss the appeal and affirm the judgment appealed against. Parties are to bear their respective costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Sections 138(1) (b) and 139(1) of the Electoral Act 2010.
➥ REFERENCED (CASE)
⦿ ANY ACTION RELATING TO THE PROCESS OF AN ELECTION FALLS WITHIN THE JURISDICTION OF THE ELECTION TRIBUNAL
Ohakim v Agbaso (2011) ALL PWLR (Pt. 553) 1806 at 1846 per Onnoghen JSC where he state as follows: “it is necessary that everything connected will the process leading to the election including the actual election and its aftermath come within the jurisdiction of election tribunal. That will stem the tide of parties trying to pursue election related matters in parallel courts which will only result in conclusion, a gleam of which can be seen in the Sokoto State Gubernatorial election petition saga, in any event, it is my considered view that since the action concerned on election conducted on 14th April 2007 by the appropriate authority whether inchoate or not, the proper court with jurisdiction to entertain any action arising therefrom or relating thereto is the relevant election tribunal established by the Constitution of this country as the matter is not a pre-election matter neither can it be accommodated under the procedure of judicial review. Section 164 of the Electoral Act 2006 defines election as meaning any election held under this Act and includes a referendum. It is therefore beyond doubt that what took place on 4th April, 2007 in Imo State in particular was an election and as such any action relating to the processes leading thereto including the actual conduct of the event or its cancellation fall within the jurisdiction of the election tribunal by operation of law and no other court or tribunal is clothed with jurisdiction to entertain it in any guise.”
➥ REFERENCED (OTHERS)