The Supreme Court on Friday gave its reasons for affirming Barrister Nyesom Wike and Senator Ibikunle Amosun as the validity elected Governor of Rivers and Ogun state in the April 11, 2015 governorship election conducted by the Independent National Electoral Commission (INEC) in the two states.
The apex court had on January 27, 2015 upheld the election of the two Peoples Democratic Party (PDP), governors, having dismissed all the appeals challenging their victory at the poll.
The seven-member panel of Justices of the apex court, presided by the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed. in a unanimous judgment delivered by Justice Kudirat Kekere-Ekun set aside the judgments of the Court of Appeal and that of the Rivers State Governorship Election Petition Tribunal delivered in December 16 and 24th October, 2015 respectively.
The Tribunal and the Court of Appeal had cancelled the election that produced Wike as governor and ordered a re-run.
In the same vein, the apex court also upheld the election of Senator Ibikunle Amosun of Ogun State.
In a unanimous judgment, the apex court dismissed the appeal of Nasir Adegboyega Isiaka and his party for lacking in merit and upheld Amosun’s election.
The court slated yesterday to give reasons for its decision.
The Supreme Court, in its reasons for for upholding the election of the two PDP governors, read by Justice Kudirat Kekere-Ekun said the intention of the constitution is that where a panel of Justices hears a matter, each of them must express and deliver his opinion in writing.
The written opinion, she added may be delivered by any other justice ‘present’ during the hearing, if the writer of the opinion is unavoidably absent.
“There is no doubt that Justice Suleiman Ambrosa, in the case of Rivers appeal, couldn’t have formed the opinion of learned counsel, which he did not hear.
Mrs. Kekere-Ekun stated that the inability of the Rivers State Governorship Election Petition Tribunal to be properly constituted during the determination of the matter, amounted to lack of fair hearing of the appellant’s case.
She further said, the action of the Tribunal was on a good ground to set aside the entire proceedings before it, but since it was an election matter which was time bound, according to section 289 (6) and (7) of the constitution, she therefore deemed it necessary to consider the appeal according to its merits.
Regarding other sections of the applications, on the alleged violation of documents tendered at the tribunal and the lower court, the Supreme Court held that the function of the card reader, though quite commendable in the conduct of the 2015 elections is solely to authenticate the owner of the voters card and prevent multiple voting by a single voter, adding that, its function, according to the constitution cannot replace the voters register, the court ruled.
Justice Kekere-Ekun further said PW49, an Assistant Director of Information Communication and Technology, acknowledged that the report she had testified to, was prepared by one, Mrs. Nnena, a staff of her unit.
She added that PW49 also told the Tribunal, during cross examination that she was not in Rivers State during the election and did not examine the card reader after the election.
The court then ruled that since the witness did not partake in any stage of the accreditation of voters, she was not in any position to testify as to how the card reader functioned during the election.
“Where the maker of a document is not called to testify, the document should not be accorded probative value, not withstanding its status as a certified copy document,” Justice Kekere-Ekun said and further stated that the testimony of PW49 is evidence to the fact that exhibit A9 cannot be a conclusive proof of the number of accredited voters at the election.
Kekere-Ekun said witnesses at the tribunal had testified that where the card reader failed to read a voter’s PVC, incident forms were used, but that none of such forms were tendered by the first and second respondent.
She also noted that; of the 11 voters register tendered out of 23 Local Government Areas, no attempt was made to link them to exhibits A9, which contained the number of accredited voters.
Kekere-Ekun added that documents before the court proved that the number of accredited voters stated in forms ECA8 were different from the number stated, in exhibit A9.
This, she said was grossly inadequate in proving none compliance, which is expected to have been done, poling units by poling units, according to the provision of the constitution.
“Section 139 of the constitution states that where a petitioner complains of none compliance with the provisions of the Electoral Act, he has an onerous task of proving it, poling unit, by poling unit; ward by ward and the standard of prove is on a balance of probabilities,” she stated.
The court held that, where the allegation of commission of a crime by a party to a proceeding is directly an issue in any proceeding, civil or criminal, it must be proven beyond reasonable doubt and added that the documents before the court, however proved that, apart from over a hundred pages of the petition that were struck out by the tribunal, an order was given not to allow police officers and security operatives testify before it.
She said the tribunal wrongly relied on random testimonies of mobile police men and operatives of the State Security Services (SSS), saying, out of the 4, 442 poling units testified to have existed by the state collation agent who spoke at the tribunal, along side 1, 350 voting points; 53 witnesses were called to testify, with only 18 of them as poling agents and their evidence was unconnected to any tendered exhibit.
Justice Kekere-Ekun said the testimony of PW 40; head of election and party monitoring department, who described the election as a sham, warfare, among others; revealed that he visited only 8 out of 23 Local Government areas, while members of his team visited an additional seven.
The witness however stated during cross examination that he did not personally visit all the Local Government Areas (LGAs).
He also admitted before the tribunal that although his team members reported that election materials were hijacked, he did not witness any such case.
The court also noted its disagreement with the evidence of PW54, which was said to have sparked the entire petition.
According to Kekere-Ekun, the witness testified that he never left his LGA throughout the election, but was informed through his agent and other sources.
While stressing that the guidelines of INEC cannot be evaluated above the provisions of the Electoral Act, Kekere-Ekun stated thus: “Section 49 (1) and (2) of the Electoral Act which provides for manual accreditation is extant and remains a vital part of the electoral law.”
She added that until INEC takes the step to ensure that the card reader is duly entrenched in the constitution, the court will accord manual accreditation its place in the law
In its reasons for affirming Senator Amosun’s election, the apex court held that the Tribunal and the Court of Appeal made concurrent findings in their decisions, which were not appealed against by the appellant.
Justice Kumai Bayang Akaahs, who read the unanimous reasons said the appellants did no show that the concurrent findings of the two lower courts were perverse for the Supreme Court to set aside.
According to the apex court, the appellants failed to proove the allegations of electoral malpractices, corruption and violation of Electoral Act to warrant the apex court to set aside the judgments of the two lower courts.
Akaahs said the evidence of PW9 and the exhibits tendered through him were worthless and agreed with the two courts below that the evidence of the witness was based on personal interest.
“It is on this account that the appeal brought before this court on January 27, 2016 was dismissed for lacking in merit. Parties should bear their cost”, Justice Akaahs held.
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