IVERS POLL: Why we reversed Wike’s sack — Supreme Court

The Supreme Court, yesterday, gave reasons it reversed

the concurrent judgments of both the Court of Appeal and

the Rivers State Governorship Election Petitions Tribunal,

which nullified the election of Governor Nyesom Wike.

The apex court, in the lead judgement delivered by

Justice Kudirat Kekere-Ekun, maintained that Wike who

contested the April 11, 2015 Rivers State governorship

election on the platform of the Peoples Democratic Party,

PDP, was denied fair hearing by the lower courts.

Aside faulting the lower courts, which it said “improperly

evaluated” the case made against Wike’s election by the

All Progressives Congress, APC, and its Governorship

Candidate, Dr. Dakuku Peterside, the apex court,

yesterday, decried what it termed undue reliance of

appeal court and election tribunal on card reader reports.

The Supreme Court restated its position that reports from

the Smart Card Reader Machines the Independent

National Electoral Commission, INEC, used for the

conduct of the 2015 general elections, cannot override the

Voters’ Register, which it said has firm root in the

Electoral Act, 2010, as amended.

In a unanimous decision yesterday, a seven-panel panel

of Justices of the apex court, led by the Chief Justice of

Nigeria, CJN, Justice Mahmud Muhammed, said though

INEC should be commended for the introduction of the

Card Reader “to booster the accuracy and transparency

of the accreditation process and to maintain the

democratic norm of one-man-one-vote, by detecting

multiple voting by voters, “Section 49 (1) and (2) of the

Electoral Act which provide for manual accreditation of

voters, is a stamp and remain a vital part of our electoral

law.”

The Supreme Court said it was not enough for anyone

that is challenging the outcome of an election on the

premise that there was over-voting, to merely tender and

rely on card reader reports, without linking same with the

actual voters’ register.

It said the card reader was only a technological

innovation that was introduced to enhance the

accreditation of voters for an election, with a view to

identifying the actual owner of the voters’ card.

The apex court dismissed contention by APC and

Peterside that the card reader report from Rivers State,

being a certified public document, represented the true

position of what happened during the governorship

election.

The court placed reliance on its recent decision in

Shinkafi vs Yari and Okereke vs Umahi and held that, “in

order to prove non-accreditation and over-voting, the 1st

and 2nd respondents were bound to rely on the voters

register in respect of all the affected local governments.

The voters register tendered were only in respect of 11

out of 23 local governments. They were tendered from

the bar; no attempt was made to link them with exhibit

A-9. It is also noteworthy that forms EC8A were tendered

in respect of only 16 out of 23 local government areas.

“This cannot meet the required standard of proving over-

voting polling unit by polling unit. Furthermore, the voters’

register could not be jettisoned in the exercise”, Justice

Kekere-Ekun held.

The Supreme Court panel held that the tendering of the

exhibits from the bar, without their makers being called,

amounted to “documentary hearsay”, saying the Rivers

State Governorship Election Petition Tribunal and the

Abuja Division of the Court of Appeal were wrong in

placing reliance on them.

“I am of the view and I do hold that the tribunal and lower

court were unduly swayed by the INEC directive on the

use of the card reader. As held by this court, the INEC

directives 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 take

steps to have the necessary amendments made to bring

the usage of the card reader within the ambit of the

substantive Electoral Act. It was for this reason that that I

resolved these two issues in favour of the appellant”,

Justice Kere-Ekun added.

Citing sections 138(1b), (2) and 153 of the Electoral Act,

the apex court noted that whereas INEC is conferred with

powers to issue regulation, guidelines and manual for

smooth conduct of an election, it said, “so long an act or

omission regarding such regulation or guideline is not

contrary to the provisions of the Act itself, it shall not on

itself be a ground for questioning the outcome of the

election.

“It follows therefore that the inclusion of non-compliance

with the manual for election officials, as well as INEC

general approved guidelines, in the circumstances of this

case is improper.

This issue is also resolved in the appellant’s favour”.

“The law is trite that the result declared by INEC enjoys

the presumption of regularity. In other words they are

prima-facie correct. The onus is on the petitioner to prove

the contrary”.

It said were a petitioner complains of non-compliance to

the Electoral Act, “He has an 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 probability. He

must show figures that the adverse party was credited

with and the result of the non-compliance. It is only then

that the respondents are to lead evidence in rebuttal. It is

also the law that were the commission of crime by a party

is directly in issue in any proceeding, civil or criminal, it

must be proved beyond every reasonable doubt. The

burden of prove is on the person who asserts it”.

The Supreme Court said it would not ordinarily interfere

with the concurrent findings of two lower courts unless it

was shown that the verdicts were “perverse or not based

on the proper and dispassionate appraisal of evidence or

that there was an error either of fact or law, which

occasioned the miscarriage of justice”.

It said out of 66 witnesses that were called by APC and

Peterside, 18 of them were ward collation agents who

received information from polling agents from the various

units, saying their evidence was not tied to any of the

exhibits tendered.

It was equally the position of the apex court that serious

allegations of crime that were made “throughout the

length and breadth of the petition, such as hijacking and

diversion of election materials, the illegal thumb printing

of ballot papers, falsification of results, violence and

kidnapping of electoral officers”, were not proved beyond

every reasonable doubt.

“Where crimes are alleged, the ingredients of the

offences must be proved. This they failed to do.

According to Justice Kekere-Ekun, “I considered the

submissions of counsels and carefully examined the

record of proceedings and I found that the tribunal and

lower court made certain pronouncements on the legal

effect of the manual, directives and guidelines of INEC

regarding the use of the Card Reader. For instance, the lower court held, ‘It was by these enormous powers

conferred on INEC that the body introduced the Card

Reader to bring sanity and sanctity into the electoral

system”

She noted that the lower court, held that; “the blatant and

brazen disobedience by the Rivers State INEC officials

cannot render the user of the card reader unlawful. The

INEC card reader initiative is well entrenched in the

Electoral Act”.

“It will therefore not be out of place to say that both lower

courts placed considerable reliance on testimony of

PW-49 and the Card Reader Report, Exhibit A-9, in

reaching the conclusion that the 1st and 2nd respondents

had successfully proved the alleged discrepancies

between the number of voters accredited in Exhibit A-9,

and those reflected in Exhibit P-10, Form EC8 series.

“This court in a number of recent decisions, had

commended the introduction of the Card Reader in the

2015 elections by INEC. The court had noted, however,

that its introduction was solely to authenticate the owner

of the voters’ card and to prevent multiple voting by a

voter, and cannot replace the voters register or statement

of result in appropriate form.

“It is worthy of note that at the point of tendering exhibit

K-9, PW-49, an Assistant Director, ICT in INEC

acknowledged that she was not in Rivers State for the

election and did not examine any of the card readers

after the election. She stated that the machines were in

Port Harcourt, she did not participate in any state of the

accreditation of voters, she was certainly not in a position

to testify as to how the card readers functioned during

the election in Rivers State.

“This court has in plethora of cases emphasized that

where the maker of a document is not called to testify,

the document should not be accorded any probative

value, notwithstanding the fact that it is a certified public

document”.

“Exhibit A-9 was tendered as conclusive proof of the

number of accredited voters at the election. As stated

earlier, PW-49 did not participate at any stage of the

election process in Rivers State. What is evident from the

extracts of the testimony of the PW-49 is that exhibit A-9

cannot be a conclusive proof of the number of accredited

voters at the election. The witnesses are acknowledged

that there are circumstances when the card reader did

not read the voters’ PVC, in which case incident forms

are used. No incident forms were tendered by the 1st and

2nd respondents.

“Secondly, there was an arbitrary cut-off date set up by

INEC for the upload of data in the INEC data base. Thirdly

as observed by learned senior counsel to the appellant,

there was nothing to show that as at the time the 1st and

2nd respondents applied for exhibit A-9, all the data from

the card reader used for the election, had been fully

uploaded. It is equally interesting to note that exhibit A-9

contained a figure of 293, 72 accredited voters, which is

contrary to the pleadings in paragraph 20 of the petition

that not more than 299, 878 voters were accredited.

“It is my view that the tribunal and court below, were

unduly influenced by the alleged failure of INEC officials

to adhere to INEC manual, guidelines and directives on

the exclusive use of the card readers for accreditation

and hearsay evidence and thereby with due respect came

to the wrong conclusion. I hold that the appellant have

should sufficient reason for this court to interfere with the

concurrent findings of the tribunal and the court below

and it was for this reason that allowed the appeal on

January 27, 2015”.