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Reasoning of supreme court in Wike’s case

By Olukayode Majekodunmi

“Open the blinds that cover their eyes, turn on the lights inside their minds, put all judgments and rumours aside and instead, put Truth and Justice, at both your sides. Leave the egos and drama all behind. And in time…truth always wins with Time.”- Suzy Kassem in Rise Up and Salute the Sun.

THE People of Quebec are so passionate about their rights to self–determination. They expressed nationalistic view on this right to go their own way.

Chief Justice of Nigeria, Mahmud Mohammed
Chief Justice of Nigeria, Mahmud Mohammed

The Supreme Court of Canada in Re Secession of Quebec said that the Canadian Constitution does not give Quebec the right to unilaterally secede.

Furthermore, the Court determined that international law and the principle of self-determination do not confer the right to secession.That was a painful pile to swallow but the People of Quebec did not bring down their institution. They have moved on and there is certainty there will be another day to test the will of their people for self-determination.

The heightened security situation and permanent tension between the Israeli and the Palestine is common knowledge. The Israeli government deployed the use of drones for targeted killing of suspected Hamas leaders. In the case instituted by The Public Committee against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment against the Government of Israel, the Israeli Supreme Court ruled against the use of targeted killing on the ground that it is too excessive in the fight against the Hamas.

In both instances above, the decisions of the Courts were seen as being against public opinion. The government and the people of both nations did not denigrate the highest institutions of justice. They stood by the decisions of their courts and that is why the institutions of most parts of western world are held in high esteem worldwide.

Coming back home to Nigeria, one can remember the exploits of giants in judicial space who made us proud worldwide.

Notable examples include Justices Teslim Elias, Charles Dadi Onyeama, Akinola Aguda, and Chukwudifu Oputa, all of blessed memory. Among the retired, but living are Justices Muhammadu Lawal Uwais, Mohammed Mustapha Akanbi, Dahiru Musdapher, Aloma Mariam Mukhtar, Inumidun Akande, Judge Bola Ajibola and so many others too numerous to name. It is indisputable that there are still many selfless, pious jurists on the different ladders of our benches.

The CJN, Mahmud Mohammed is renowned for as strict, pious, and independent. There is no basis or ground for the unfounded apprehension about lack of distinguished and honourable men and women of integrity in our judiciary. It is important we find a way of speaking for our judicial officers especially now that it is common place to allege bias once Judgement goes the other way.

The apex court had delivered the judgement on January 27 but the reasons for the decision came on the February 12, 2016. To those who are conversant with Justices of the Supreme Court, there was never any need to doubt our most learned Lords. They are the conscience of our judicial system; they know the interplay between the law and the concept of justice. They have paid their dues in defending the sanctity of our institution and this short piece is not only to align myself with their decision in Wike’s case but in all their decisions in relation to other election petitions.

It is satisfying to have to read the full judgement of the Court. One must admit it was worth the wait. And it has further strengthened my conviction about the intellectual sagacity of our Judicial Officers.

The Summary of the Court decision are that there was allegation of denial of fair hearing, the introduction of card readers, as innovative as it appears to be cannot displace the place of voters’ register. On the issue of allegation of violence and hijacking, the court held that Dakuku was not able to prove beyond reasonable doubt because he failed to bring in witnesses from polling units to substantiate the claims. It was also held that the APC did not proof their allegation of non-accreditation.

On the evidence of the INEC staff (called by the Petitioners), who described the election as a sham and a mockery of democracy, the court held that his evidence cannot take the place of voters as he himself under cross examination did not say that he personally witnessed any violence but depended on hearsay and finally, the court held that to warrant nullification of an election, a petitioner has to prove that there was substantial non-compliance in all polling units, adding that they failed to bring the issue within this parameter. The apex court also advised INEC to approach the

National Assembly for an amendment to incorporate the use of card readers in the law of the land.

The most important part of the decision of the Supreme Court in this case was the fact that it was a unanimous decision. The seven-man 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, “Section 49 (1) and (2) of the Electoral Act which provides for manual accreditation of voters, is a stamp and remains a vital part of our electoral law.”

It was further said by the Supreme Court that 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.

In dismissing the contention of APC and Peterside Dakuku that the Card Reader being a Certified Public Document represented the true position of what happened in Rivers State, the Apex court placed reliance on its recent decisions in Shikafi Vs. Yari and Okereke Vs. Umahi and declared 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.”

It is instructive to note that the voters’ register tendered were only in respect of 11 out of 23 local governments. They were tendered from the bar and there was no attempt 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. On this, the Supreme Court held per K.M. O. Kekere –Ekun, JSC that “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.” The Supreme Court contended 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.

On the directive of INEC on the use of Card Reader, the Court further held per Justice Kekere-Ekun as follows: “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 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.” In going further on the issue of Card Reader and the power of INEC to make regulations, 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.

The Court reaffirmed the fact that it will 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 where a petitioner complains of non-compliance with the Electoral Act, he has the task to 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 APC and Peterside called 66 witnesses, 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, adding that,

“Where crimes are alleged, the ingredients of the offences must be proved. This they failed to do.”

There was commendation of INEC on the introduction of Card reader but in a very sound reasoning of the Apex court, the introduction of the said card was solely to authenticate the owner of the voter’s card and prevention of multiple voting and not in any way intended to replace the voters register in appropriate form. The court did not stop here as there was a suggestion to INEC to request for an amendment to the National Assembly to incorporate the use of Card reader in the Electoral Act.

It is a settled law that the maker of a document should normally be called to give evidence on the document in issue. The Court reaffirmed this settled law when it said: “This court has in plethora of cases emphasised 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.

Immediately after the apex court delivered the judgement in favour of Wike. Many prominent Nigerians including the renowned Professor Sagay and the National Chairman of APC, Chief John Odigie-Oyegun cried foul and there was a direct accusation of former governor Odili influencing the said judgement through his wife. I was particularly taken aback and I felt the need to wait for the judgement and get to read the reasoning behind the landmark decision of the court. It is important to state that Hon. Justice Mary Odili was not part of the panel that heard this appeal and it is important that the Nigerian Bar Association should ask those who allege bias and undue influence to come and prove their allegation.

To me, I felt a special need to read the Judgement because it was my own personal legal icon that read the lead judgement. I have read so many judgements of Justice Kekere-Ekun and I make bold to say that she is about the most erudite judge of our time. It is my hope and aspiration to be as learned and erudite as noble justice of the Supreme Court.

It is uncharitable and ungodly for anyone to seek to tarnish her and the brethren of the Supreme Court merely because their decisions displease us or disappoint us. Those who do not know My Lord Justice Kekere-Ekun should ask from those who know and have closely followed her career and reputation from the Magistracy, to High court, to Court of Appeal, up to the Supreme Court. I assure them that they would come to a conclusion that she is one judge that can never be influenced or pressured to give judgment along a particular way. And since these justices are not in a position to defend themselves, it is most unfair to accuse them of bias without any shred of evidence.

In closing, I recall the decision of the Supreme Court in the celebrated electoral case between Chief Obafemi Awolowo and Alhaji Shehu Shagari that arose from 1979 presidential elections. The ruling of the Supreme Court on what constituted 2/3 of 19 States caused much consternation among the supporters of Late Chief Awolowo who was on the losing end of the verdict. The Supreme Court held that 2/3 of 19 states was 12 2/3. It was a novelty that there could be a subdivision of a state. In the best tradition of the bar, Chief Awolowo’s team led by the late Chief G. O. K. Ajayi took the loss with solemnity.

Notably, Chief Obafemi Awolowo, SAN, did not rebuke, criticize or attack the court. There were no imputations against the Hon Justice Fatai Atanda Williams led court. If need be, a more fairly recent case was the case of Gore V Bush, where the US Supreme Court effectively ruled to stop ongoing recounts of disputed ballots in a county in the State of Florida which forced Al Gore to concede the 2000 presidential election to George W. Bush, his Republican opponent. It need be noted too that Al Gore is a lawyer.

•Olukayode Majekodunmi Esq. writes from Lagos.


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