* Says lower courts elevated card reader above voters’ register
* Wike denied fair-hearing
By Ikechuwkwu Nnochiri, Abuja
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”.