By Emmanuel Nicholas
Presently, it is the Electoral Act, 2010 (as amended) that regulates the conduct of elections and election petitions in Nigeria in respect of the offices of President or Vice-President, National Assembly, Governorship and Legislative Houses for States.
The prerogative of an election tribunal to prove election matters is of very distinct nature, dissimilar from the regular civil cases. The proceedings are exceptional for which special requirements are made with authority from the Constitution and Supreme Court Precedents.
It is relevant that even in certain statutes; the least avoidance in complying with a procedural footstep which otherwise, any could be preserved or ignored in ordinary civil proceedings, could result in fatal penalties to the petition of the petitioner.
The Supreme Court and Court of Appeal Precedents are the authorities that guide the lower Courts in the act of delivering their Judgment’s,, but when a lower court in her Judgment veers off the precedents, this provides clear jurisdiction for either the Appeal or the Supreme Court to correct those contradictions in such Judgments that contravenes the Precedents of the Appellant Courts.
In most cases the Apex Courts will set aside the Judgment of the tribunal which contradicted the precedents, electoral act and Rule to correct the Judgments of the Lower Court, in sacrosanct to the principle of the precedents and the constitution. It is probable for the Lower court to apply accurate Precedents in delivering so it does not place either the petitioner or the Respondent in danger of having a short term joy of the victory.
The Akwa Ibom Elections Petition Tribunal contradicted its verdict, when she ruled that, the petitioners were unable to demonstrate that card reader alone can be relied upon for accreditation throughout the state. According to the Judges, the use of card reader cannot be used contrary to the express provision of the law as conferred on INEC.
The Tribunal ruled that, an INEC press release cannot override section 41 of the Electoral Act on accreditation, and stressed that, the card reader was not contemplated by section 49 of the Act on accreditation.
Accordingly, the Tribunal further ruled that, they are convinced election substantially complied with the provisions of the law and therefore resolved that the 1st respondent, Governor Udom Emmanuel scored the highest number of valid votes cast and therefore declared winner. The Judge veered off their Ruling when he suddenly ordered for Re-Run in 18 Local Government Areas in Akwa Ibom Ibom State.
Umana could not prove to the court the criminal allegation , he leveled against the 1st , 2nd and 3rd correspondents, of violating the Electoral Act. Umana alleged that there was no election in Akwa Ibom State , that there were acts of killing ,snatching of ballot boxes and mass thumb printing by the defendants .
So, for Umana to prove that there was no election ,he must be substantial enough , but Sadiq Umar’s Judgment says that Umana was not able to prove that there was no election and the act of violence cannot be linked to Governor Udom Emmanuel and PDP , and this is in accordance with the provision of section 146(1) of the Electoral Act 2006:
“An election shall not be liable to be invalidated by reason of noncompliance with the provisions of this Act if it appears to the Election Tribunal or Court that the Election was conducted substantially in accordance with the principles of this act and that the noncompliance did not affect substantially the result of the election.” And Umar’s Judgment says the election of Akwa Ibom State was in compliance with the electoral act .
It follows from the foregoing provision therefore, that, for a party to establish acts of noncompliance he must not only plead and prove the acts of such noncompliance, but also further prove that, the act of noncompliance did substantially affect the result of the election. Section 145 must be married to section 146 for the goal sought under the former to be achieved.
At paragraph 44 of the petition, the petitioners averred and said:-
“44. Your petitioners state that no elections known to the Electoral Act, 2006 and the Manual for Election or to any civilized clime were conducted in Akwa Ibom State that the purported results concocted and brought forth from these Units are fake, manipulated and not borne out of any lawful electoral process.”
But by the interpretation of section 146(1) of the Act, a credible election is that which must have been conducted substantially in accordance with the principles of this Act and also that the nature of the noncompliance must not substantially affect the result. The outcome of the latter is dependent, upon the former.
The next related question is: what should be the nature and extent of the expected noncompliance before it could satisfy the phrase “substantially conducted in accordance with the accepted principles”? The answer to this would lie in the question: What elements constitute an election? Relevant and which could serve as a guiding factor is the case of INEC v Ray (2005) All FWLR (Pt.265) 1047 wherein this court at pages 1071-1072 had this to say:-
“It is trite in law that the concept of “election” denotes a process constituting accreditation, voting, collation, recording on all relevant INEC forms and declaration of results. The collation of all results of the polling units making up the wards and the declaration of results are the constituent elements of an election as known to law, ‘The authority of Igodo v Owulo (supra) at 77 C-E; 78 para. H, and 79 paras A-B; supports the contention. Also relevant are sections 40, 42, 43, 54, 55 and 56 of the Electoral Act 2002.” And this entire step was carried out during the April 11 election in Akwa in Akwa Ibom State .
Justice Sadiq Umar’s major contradiction in Akwa Ibom election tribunal , is, after accepting that there was an election in Akwa Ibom known to law , that the petitioner could not prove his petition that there was no election known to law in Akwa Ibom on 11th April . One therefore wonders why he veered off his path of ruling and ordered re-run in 18 Local Government Areas , including Ibeno and Udung Uko Local Government Areas that the petitioner did not present neither a witness nor any evidence in bid to prove his petition .
The Umar’s Ruling covered 3200 polling units in Akwa Ibom state
The Appeal Court will easily find grounds to upturn the Judgment. A look at the Judgment in Ogun state tribunal, that buttressed these facts wil do. When Upholding Governor Amosun’s Election, Chairman of the 3-man panel, Justice Henry Olusiyi who delivered the judgment in Abeokuta on Friday, dismissed the petition raised by the Peoples Democratic Party (PDP) candidate, Mr Gboyega Nasir Isiaka. Isiaka had alleged that irregularities occurred during the election. Isiaka said the votes credited to Amosun in nine of the 20 local government areas were invalid on grounds of fraud, malpractices, ballot snatching, stuffing and outright rigging. He had, therefore, prayed the court to declare him as the winner of the election having scored the highest number of valid votes cast at the election. Just like Justice Umar had Stated in his Ruling and veered off to nullify election in 18 local Government Areas.
The chairman held that the claims of the petitioner were largely unsubstantiated and the proofs grossly insufficient to support his allegations. He said the responsibility of proving the invalidity of the votes credited to Amosun which rested on the petitioner was not properly discharged. “Whereas the petitioner alleged malpractices in nine local government areas, he gave evidence in only 12 out of the entire 1,672 poling units of the nine local governments. “He has also failed to show that the alleged non- compliance of the polls with the Electoral Act 2010, as amended, substantially affected the overall result of the election. “The petition is long in allegations but pitiably short in evidence to prove them. “The petitioner has failed to prove his case against the respondents either on balance of probability or beyond reasonable doubt. “The election petition filed by the petitioner on April 30, 2015 against the return of the 1st respondent lacks merit and it is accordingly dismissed.
But the Case of Akwa Ibom State election tribunal was different, the three man panel went ahead to cancel election in 18 local Government, contradicting the ruling.
Akwa Ibom was offered a duplicitous judgement, the petitioners failed to prove the alleged irregularities and electoral irregularities polling unit by polling unit, which is the standard of proof set by the Supreme Court.
I therefore see the dead end of Mr Umana’s petition at the Court of Appeal , as there was no synergy between the Ruling and the APC financially induced Judgement of Justice Sadiq Umar.