Akeredolu & Anor Vs Mimiko & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

C. M. CHUKWUMA-ENEH, JSC

In the lead judgment prepared and delivered in this appeal before this court the facts and the statements of the cases of the parties have been set out in sufficient detail. For the purpose of this short contribution I adopt them as mine.

It is to be noted that the Tribunal in this petition in its judgment has dismissed the petition even although it has also reached the conclusion that more than 100,000 unlawful registrants have been injected into the 2012 Register of voters without there having been conducted by INEC of any exercises in review or revision or new registration as per the said Register of voters. The Tribunal has in reaching this conclusion said that the petitioners’ main complaint of non-compliance has been hinged on challenging the content of the Register of voters and not as to the use to which the register has been put during the actual conduct of the election process and so, that its jurisdiction as election Tribunal has been ousted as the complaint tantamount to a pre-election matter over which an Election Tribunal has no power to deal with. Clearly there is a misconception of the applicable election law, procedure and practice vis-a-vis the said finding as I will establish anon. Even then, and more importantly that the effect of the injection of names of these illegal voters upon the result of the instant election has not been proved by the petitioners, i.e. that the petitioners have failed to show how the injection of over 100,000 registrants has affected the outcome of the election.

Against the foregoing background the lower court’ has rightly set aside the Tribunal’s finding declining jurisdiction, it has itself nonetheless come to hold that the injection of over 100,000 unlawful Registrants ever although not as per any legitimate exercise by INEC’s act under the Electoral Act as to suffice as what might go as a review or revision or new registration of the Register of voters. All the same, that much of what properly has been in issue in this matter is as regards to the use to which the register of voters has been put in the conduct of the instant election process and so that the instant petition is absolutely within the Tribunal’s jurisdiction as the complaint of its use is not by any stretch of the construction of the Electoral Act a pre-election issue, it has also held that the petitioners have not even then as a matter of discharging the onus on them showed how it has impacted the outcome of the instant election, in other words, that the injection has not substantially affected the outcome of the election, it has therefore come to hold the due Return of the 1st respondent in the said election, it is on such sound grounds that the court below has based its decision in this matter.

Let me pause here to interpose that there are occasions arising from the peculiar facts and circumstances of an election petition when some pre-election causes may in fact and in law arise in the conduct of actual elections as in this regard. There are causes such as questioning in most cases even the nominations, or its validity, screening and clearing of candidates for elections may so arise. Such complaints are known to have reared their heads thus spilling over into the conduct of elections proper. And so a Tribunal as the instant one faced with the questions as in the instant circumstances as aforesaid has to examine absolutely the facts and circumstances, in order words the subject matter of the petition before it closely to ascertain whether the Court/Tribunal has jurisdiction over the subject matter of the petition and so also against the Act creating the Court/Tribunal. Thus an election petition itself has to be closely examined as regards to the subject matter of the claim/petition as in this case before the Court/Tribunal declines jurisdiction on the ground simply that the complaint does not arise out of the conduct of an election process proper or as not having happened within the actual period of the conduct of elections. The ground upon which the instant petition is premised is clearly within the provisions of Sections 138(1) (b) and 139(1). It is settled law that the plaintiff’s claim as a petitioner’s petition here has to be looked at to ascertain whether or not the claim/petition falls within the jurisdiction of the Court/Tribunal. See: Madukofu & Ors. v. Nkemdillm (1962) 1 ANLR 587. in the above cited case this court has attempted to set out the pre-conditions now trite that has to exist before a court could assume jurisdiction over a matter placed before it for adjudication. I see no need replicating them here. And this principle applies here with every vigour.

The appellants’ case in this appeal put briefly has questioned the instant voting without accreditation vis-a-v vis the instant alleged disorderly register of voters with all its obvious discrepancies. Thus it has questioned the number of lawful voters so ticked therein as having voted according to the said register in the instant election as being totally different from the actual number as recorded to have so voted as per FORM EC8A. in other words, these infractions have brought out clearly the use of an inappropriate register of voters in the conduct of the said election process. Again, let me pause here to observe that the importance of an authentic Register of voters for an open and transparent election process cannot be underestimated. Not only that the candidate who intends to contest in a particular election is required to be a registered voter as per the Register of voters, also a person who is minded to cast his vote in an election must be a Registered Voter as per the register of voters to be enabled to cast his vote in an election.

It is clear that the gravamen of the appellants’ case in this matter is on the non use of an appropriate Register of voters and strictly speaking not on the contents of the said register of voters per se. I have to expatiate upon this point as it touches on the issue of jurisdiction and to show that the Tribunal here has completely, with respect, misapprehended the petitioners’ case before it; even although it ultimately has come to the correct decision by dismissing the petition. The Court below is therefore right to have overruled the Tribunal on the issue of want jurisdiction, and consequently to have set aside that finding to the effect that the petitioners’ complaints are otherwise hinged on pre-election infractions and so outside its jurisdiction.

The other crucial point upon which the appeal again hinges has included the propriety of the Tribunal’s finding as affirmed by the court below that the impact of the invalid number of registrants on the overall election has not been proved in the instant case nor has the evidence preferred attained the standard of proof required according to the law and also that the various questions of non-compliance alleged by the appellants in the petition have not again been proved.

On the backdrop of the above premises the crucial question on whom lies the burden of proof and the propriety of the Tribunal’s finding on that issue as affirmed by the court below and so also the finding that in law the burden of proof lies on the petitioners/appellants as a matter of law. The appellants utter failure so to appreciate this points upon the backdrop of a proper construction of section 133(1) (b) and Section 139(1) of the Electoral Act as amended is obvious as per paragraphs 8.06, 8.07 and 8.08 of the appellants joint brief of argument. I will expatiate anon, As a coroflary to the foregoing premise, again this has raised in this case the pertinent question of standard of proof beyond reasonable doubt as the categories of the complaints alleged by the appellants prima facie amounting to non-compliance with the Electoral Act are of a criminal nature. The appellants have proffered in that regard the testimonies of their experts as per PW34 and PW35 vis-a-vis Exhibits P52 (A & B) and P55, P56 and P57 (A1 – A20) received in evidence in this matter, all of which have been rejected and discountenanced by the court below for reasons ably stated in the lead judgment. The said exhibits tendered before the Tribunal have been castigated based on sections 131(1) & (2), 132, 133(13) and 134 of the Evidence Act 2011 which l also find applicable. However, this aspect of the appellants’ case has been so satisfactorily dealt with in the lead judgment of my Noble Lord Ngwuta JSC that I do not see any grounds for duplicating the same here. He has given in-depth assessment of their evidential value and weight to be attached to the evidence of PW34 and PW35 in the context of this case, i need not delve into the same here as l have nothing to add thereto.

However, on the complaints that the appellants have failed to prove the acts of non-compiiance with the Electoral Act and its guidelines that is to say by showing that they substantially have affected the result of the election, the appellants’ stance in this regard is captured by their paragraphs 8.06, 8.07 and 8.08 in their joint brief of argument in this appeal and they read as follows:

“8.06 – The court of Appeal acted in contravention of S.139(1) of the Electoral Act by requiring the appellants who had already proved non-compliance with the Electoral Act to further proof that non-compliance substantially affected the outcome of the election.

8.7 – The lower court was wrong by failing to hold that invalidity of the election automatically followed by the operation of law under s.138 (1) (b), is (sic) holding that the election was afflicted by non-compliance with the Electoral Act.

8.8 – Even if the lower court was correct in holding that the appellants had a further duty to prove how the non-compliance proved, substantially affected the outcome of the election, the lower court was still wrong not to have itself, examined the evidence on record to see whether it was so proved.

The respondents particularly the 3rd respondent in response therefore have contended that the court below has acted correctly in folding to the findings that the appellants have totally failed to .establish the acts of non-compliance with Electoral Act and the guidelines as alleged so as to vitiate the election. And also that they have misconceived their case as per the combined reading of the provisions of Sections 138(1) (b) and 139(1) of the Electoral Act as amended in projecting their position that the Register of voters on having been vitiated that the invalidity of the election automatically followed by operation of the law under section 138(1) (b), and so that the instant election must be nullified. Again, that to hold to the foregoing views negates the clear provisions of Section 138(1) (b) construed together with section 139 (1) of Electoral Act 2010 as amended, in this regard they have argued that even where non-compliance with the provisions of the Electoral Act have been found proved, all the same, that the election is still sustainable provided it has been conducted in substantial compliance with the other provisions of the Electoral Act to such a degree that the election cannot be vitiated. As can be seen the questions raised for determination in this appeal turn on the construction of these provisions.

At this stage I refer to the instant provisions of section 138(1) (b) and 139(1) by setting them out as follows:-

“138(1) An election may be questioned on on ……………….. the grounds:

(a) (not applicable)

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of (the) Act.

139(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Electoral Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”

Clearly a combined reading of the provisions of Section 138(1) (b) and Section 139(1) has showed that Section 138 (1) (b) has to be resorted to on the backdrop of the provisions of section 139(1). The two sections must be read together in construing the principle of non-compliance and its application to the complaints of non-compliance in election matters. I hold the view that the two provisions have to be so construed together in order to arrive at the true intention of the law-maker and it couldn’t be moreso than here where the provisions of the said two sections are dealing with the same subject matter of non-compliance. The 3rd respondent has practically argued to the effect that Section 138(1) (b) literarily has to be read subject to Section 139(1) and I agree. Again, they must be read conjunctively to achieve the lawmaker’s intention, in this regard an election cannot be vitiated for non-compliance unless and until the election sought to be vitiated is also further showed conclusively where the standard proof so requires it, that the non-compliance has also substantially affected the result of the election in other words the appellants have to establish that but for the non-compliance they would otherwise have scored a majority of lawful votes over the number of votes cast for the 1st respondent. Meaning in the context of this matter that going arithmetically that by subtracting the said over 100,000 illegal votes from the votes cast in favour of the 1st respondent here in the election that the votes cast in their favour would have come tops to that of the 1st respondent In practical terms that is what the respondents’ argument here has represented. The appellants’ argument as per their above cited paragraph 8.07, with respect, is misconceived and unacceptable, it is wrong on the facts and circumstances of this matter or the applicable law to hold that the invalidity of the election automatically flows by operation of law under Section 138(1) without adverting to the further duty on the appellants to show that the non-compliance having been proved has substantially affected the outcome of the election. And so it is not the duty of the lower court to scout around the record to see if there is such evidence as that would mean prosecuting the appellants’ case by the Tribunal, in this regard the two limbs of the provisions of Section 139(1) must therefore be satisfied to warrant nullifying an election which otherwise in law has also to be presumed to be regular. Clearly from the provisions of Section 139(1) the burden is squarely on the appellants who asserts the acts of non-compliance to further show how the non-compliance has affected the outcome of the election and who otherwise would fail if no evidence at all is supplied in that regard. I am quite aware of the proposition by Lord Denning construing similar provision as here (as I have observed in many cases before now) to the effect that an election could be so marred that it is substantially conducted in non-compliance with the law and thus vitiating the entire election. See: Morgan v. Simpson (1975) OB. 151, in such a case I must add such an election must have lost all character of an election arising out of the alleged non-compliance with the law. in other words it must be such a fundamental breach in law to vitiate an election, upon that construction the observation of my learned brother Onnoghen JSC in Ojukwu v. Yar’Adua (2009) 12 NWLR (Pt.1154) on non-compliance with regard to non-serialization of ballot papers used in that election, though obiter in dissenting opinion has to be seen in that light. However, this court’s opinion on this issue is as clearly settled in Awofowo v. Shagari (1979) 2 NSSC 87 at p.3 per Obaseki JSC. wherefore his Lordship has applied the principle as per the case of Woodward v. Sarsons (10 CP.733) at 751 in preference to the principle in Morgan v. Simpson (supra).

The wordings of these provisions i.e. sections 138(1) (b) and 139(1) I must emphasise are plain and clearly do not admit of any ambiguity. They therefore have to be construed literarily by giving the words used therein their natural simple meaning – thus there is no scope for having recourse to the rules of construction.

Construing the word “non-compliance” in both provisions with regard to an election has created a situation where an election has been conducted in a manner not in accordance with the provisions of the Act and/or the guidelines prescribed therefrom. The instant Electoral Act has made Rules for the conduct of elections under the heading “procedure at election” and they cover a wide range of activities or exercises which taken together will ground a wholesome election process that would culminate into a transparent and open election process that is fair and free, in this regard the two limbs of the provisions of Section 139(1) must be construed as a whole, each limb, as it were, throws some light on the other. And so, upon the meaning of non-compliance with the Act and for the plea to avail a petitioner in an election petition as the instant one it goes without more that the petitioner has to further prove that he would otherwise have won the election fair and square but for the illegitimate acts or omissions tantamounting to non-compliance as in this case by INEC i.e. the 3rd respondent (INEC) in the said election process.

I think the appellants have also missed the point in their submissions that the respondents have failed to supply any evidence in discharge of the onus of proof on them that is to show that the election has been conducted in substantial compliance with the principles of the Electoral Act and that the non-compliance as alleged in the petition by the appellants has not affected substantially the result of the election. This will tantamount to standing the onus of proof based on the instant pleadings and Electoral Act on its head. As I have showed herein to place such burden on the respondents will thus render the instant non-compliance as an exception under Section 139(1) and clearly it is based on a misconception of the provisions of the Act and is without any doubt misplaced and it is accordingly unacceptable. The second limb of section 139(1) is as much a part of the said section as the first limb that the two limbs of the section must therefore be construed conjunctively and as l have said herein as each limb throws some light on the other. The burden of proof arising from the provisions of Section 139(1) is squarely placed on the appellants in this matter.

In sum, the appellants’ case in these appeals lack merits. I too dismiss the same and I endorse the orders contained in lead judgment of my noble Lord Ngwuta JSC including the order on costs. Appeal and Cross Appeals dismissed.

SC 352/2013