How issue of over-voting can be satisfactorily proved in an election petition

In the Supreme Court of Nigeria
On Friday the 26th day of February 2016
SC.22/2016(REASONS)
Before their Lordships
MAHMUD MOHAMMED – Justice of The Supreme Court of Nigeria
IBRAHIM TANKO MUHAMMAD – Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA – Justice of The Supreme Court of Nigeria
OLABODE RHODES-VIVOUR -Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS – Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
– Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE – Justice of The Supreme Court of Nigeria
Between
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) ……………..Appellant(s)
AND
1. ALEX OTTI
2. ALL PROGRESSIVES GRAND ALLIANCE (APGA)
3. OKEZIE VICTOR IKPEAZU
4. PEOPLES DEMOCRATIC PARTY (PDP)……………………… Respondent(s)

Okezie Victor Ikpeazu (Appellant) contested in the Gubernatorial Elections of 11th and 25th April 2015, as the candidate of the Peoples Democratic Party (PDP) (3rd Respondent). Alex Otti (1st Respondent) also participated in the same elections as the candidate of the All Progressives Grand Alliance (APGA) (2nd Respondent). At the end of the polls and collation of results, the Independent National Electoral Commission (INEC) (4th Respondent) declared Okezie Victor Ikpeazu (Appellant) the winner and returned him the duly elected Governor of Abia State. Alex Otti (1st Respondent) and APGA (2nd Respondent) challenged the declaration of the Appellant herein as the winner of the said election at the Governorship Election Tribunal in Umuahia, seeking some reliefs and challenging the declaration of Okezie Victor Ikpeazu (Appellant) as the winner of the Governorship Election conducted in Abia State on 11th and 25th April, 2015.

The Governorship Election Tribunal in its considered judgment, dismissed the petition on diverse grounds, including but not limited to the fact that none of the criminal allegations contained in the petition was proved; that the petitioners, who were challenging the result of the election based on alleged over-voting did not rely on any Voters’ Register of Form EC8A as mandatorily required under Section 49 of the Electoral Act, 2010 (as amended); that they merely relied on a Card Reader Report, which in itself not only contradicts another Card Reader Report tendered by the same petitioners, but which also conflicts with the testimony of PW19; that all documents tendered by the petitioners were merely dumped on the Tribunal. Dissatisfied with the decision of the Governorship Election Tribunal, Alex Otti (1st Respondent) and APGA (2nd Respondent) appealed to the Court of Appeal sitting in Owerri which reversed the decision of the Governorship Election Tribunal. The Okezie Victor Ikpeazu (Appellant) was not satisfied and he appealed to the Supreme Court.

In the appellant’s brief 10 issues were distilled for determination of the appeal are as follows:-”

. Juxtaposing the fact that the Tribunal in its judgment righty held that the criminal allegations in the petition before it were not proven, vis-a-vis issue 9 formulated by the 1st and 2nd Respondents (as appellants), whether the lower court did not fall into serious error, not only in its failure to treat and resolve the said issue 9, but also going further to upturn the judgment of the Tribunal in the absence of the resolution of the said issue.

. Considering the reliefs specifically sought by the 1st and 2nd Respondents {first as petitioners before the Tribunal, and later as appellants before the lower court), vis-a-vis the judgment of the Tribunal and that of the lower court, whether the lower court did not fall into grave error, and also acted without jurisdiction by reversing the decision of the Tribunal on the said reliefs, and also granting the reliefs and consequential orders it so made.

. Having rightly found that the State Returning Officer had no power to cancel elections, whether the lower court was not in error when it returned the 1st respondent as Governor of Abia State.

. Whether the lower court was not wrong in solely relying on Exhibit PWC2 in voiding the election and return of the appellant on the allegation of over voting.

. Having regard to the judgment of the Tribunal which was based on the evidence adduced before it and appraisal of same (including the evidence of PW19 and PW20), vis-a-vis the fact that the lower court did not upturn the findings of the Tribunal on core areas of its judgment, whether the lower court did not fall into serious error by setting aside the judgment of the Tribunal.

. Having struck out Ground 28 of the 1st and 2nd Respondents’ (as appellants) Grounds of Appeal, as well as issue 14 in their brief of argument, whether the lower court did not fall into serious error and also acted without jurisdiction by still going ahead to treat the issue arising from the struck out ground, as well as the struck out issue.

. Having regard to the various reasons given by the Tribunal in striking out paragraphs 16, 21, 30(a) and 48 of the petition, whether the lower court was not in error in restoring the said paragraphs in a wholesale manner,

. Whether the decision of the lower court is not altogether a nullity.

. Whether the lower court was not in error to have adopted the 17 issues formulated by the appellant, and

. Considering the antecedents of the case before the lower court, including the oral and documentary evidence led at the Tribunal, whether the judgment of the lower court would not be set aside.

This appeal borders on Election Petition. The appeal arose from the judgment of the Court of Appeal, Owerri Division, delivered on 3rd December, 2015, setting aside the judgment of the Abia State Governorship Election Tribunal, which dismissed the petition of the 1st and 2nd respondents against the return of the 3rd respondent as the duly elected Governor of the State.

Three Separate appeals were filed against the judgment, to wit: (i) SC. 18/2016: Okezie Victor Ikpeazu Vs Alex Otti & Ors (ii) SC.2212016: INEC Vs Alex Otti & Ors (iii) SC.19/2016: PDP Vs Alex Otti & Ors

ISSUES FOR DETERMINATION: The Appellant distilled the following issues for determination; 1. Whether the Court below was not wrong in law when it dismissed the Appellant’s preliminary objection challenging the competence of the Notice of Appeal and the jurisdiction of the said Court to entertain the appeal before it.

2. Whether in the light of the pleadings of the 1st and 2nd Respondents regarding alleged electoral malpractices in the elections in some polling units in Osisioma LGA, Obingwa LGA and Isiala Ngwa North LGA and on account of which the said Respondents computed, identified, listed and summarized “invalid votes” earned therefrom by the 2nd and 4th Respondents respectively and which still show that the 3rd Respondent won the majority of the valid votes cast, the Court below, was not wrong in law when it held that it was the 1st Respondent who won the majority of the valid votes cast at the election?

3. Whether the Courts below was not wrong in law when it held that there was over voting in Osisioma LGA, Obingwa LGA and Isiala Ngwa North LGA and consequently cancelled the results of election that emanated from the said local Government Areas and deducted the entire votes thereat from the overall results declared by the Appellant for the 1st Respondent and the 3rd Respondent respectively?

4. Whether the Court below having cancelled the results of election in Osisioma LGA, Obingwa LGA and Isiala Ngwa North LGA and discounted the votes which emanated therefrom, the said Court was right in law to have declared that the 1st Respondent won the majority of the lawful votes cast at the said election and satisfied the requirements of the 1999 Constitution and other relevant laws?

5. Whether the Court below was not wrong in law and occasioned by the miscarriage of justice when it held that the reliefs the 1st and 2nd Respondents sought in their petition were grantable and proceeded to grant the aforesaid Respondents their main relief and alternative relief? The first issue of the Appellant was resolved by the Court since the other issues were dealt with in the other suits.

HELD: The Court found merit in the appeal same was allowed. The orders of the Court of Appeal in respect of the election was set aside.