Fresh election is in order where no clear winner emerged part 4

IN THE COURT OF APPEAL
HOLDEN AT OWERRI JUDICIAL DIVISION
THURSDAY THE 31ST DAY OF DECEMBER 2015
BEFORE THEIR LORDSHIPS:
HON. JUSTICE OYEBISI FOLAYEMI OMOLEYE PRESIDING JUSTICE COURT OF APPEAL
HON. JUSTICE CHINWE EUGENIA IYIZOBA JUSTICE, COURT OF APPEAL
HON. JUSTICE SAMUEL CHUKWUDUMEBI OSEJI JUSTICE, COURT OF APPEAL
HON. JUSTICE TIJSNI ABUBAKAR JUSTICE, COURT OF APPEAL
HON. JUSTICE JAMILU YAMMAMA TUKUR JUSTICE, COURT OF APPEAL
CA/OW/EPT/GOV./6/2015
BETWEEN
1. ALEX OTTI
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA) ………………………..…………APPELLANTS
AND
1. OKEZIE IKPEAZU
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC)……………. RESPONDENTS
Learned senior counsel urged us to uphold this issue and allow the related ground of appeal.
RESOLUTION:
We find it quite perplexing that the Tribunal instead of considering carefully the pleadings of and evidence adduced in the petition and determining all the issues raised by the respective parties, seemed more concerned with getting rid of as many of the reliefs as possible by striking them out for one acceptable reason or the other. All the reasons given are untenable and at the end of the day amount to depriving the Appellants for fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria. These generalizations that the claims of the Appellants/Petitioners were not grantable without giving plausible and definite reasons are unacceptable in law. In the case of Brawal Shipping vs. Onwudiko Co. (2006) 6 SCNJ 508 at 522, Uwaifo, JSC (Rtd) observed thus:

It is no longer in doubt that this Court demands of and admonishes the lower Courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issues decided by them could be faulted on appeal.

The view of the Tribunal that the claims of the Appellants were not grantable is clearly misconceived in law and facts.
The issue is resolved against the Respondents and in favour of the Appellants.

Issues 2 and 17:
2. Whether in the light of the Electoral Act, the approved regulations and the manual for election and evidence on Record, the learned Judges of the Tribunal were not wrong when they failed to set aside the return of the 1st Respondent?
17. Whether the Learned Trial Judges of the Tribunal were not wrong in failing to redolve the issue relating to who as between the 1st Appellant and the 1st Respondent scored the majority of lawful voted cast in the election, which issue was properly raised before the Tribunal and supported by evidence?

Issue three:
Whether in the light of the Electoral Act, 2010 as amended, the approved guidelines and manual for election and evidence on record regarding card readers, the learned Judges of the Tribunal were not wrong in failing to determine the effect of the fictitious accreditation figures contained in the results declared for Obingwa, Osisioma Ngwa and Isiala Ngwa North Local Government Areas?

Issue Five:
Whether in the light of the pleadings, evidence on the record and the extant laws, the learned Trial Judges gave proper consideration to the case of the Appellants before arriving at their decision discountenancing documents admitted in evidence?

ISSUES SIX AND SEVEN
6. Whether in the light of the pleading, evidence on the record and the extant laws, the learned trial Judges of the Tribunal gave proper consideration to the case of the Appellants before arriving at their decision that there was a re-run election in which the Appellants participated and cannot therefore complain?
7. Whether in the light of the pleadings, evidence on record and the extant laws, the learned trial Judges of the Tribunal were not wrong in discountenancing documents properly admitted in evidence as Exhibit which proved the allegation of non-compliance?

ISSUE EIGHT
Whether in the light of the applicable law, the learned Judges of the Tribunal gave proper consideration to the oral and documentary evidence led by the Appellants before arriving at their conclusion that the Appellants failed to prove the acts of non-compliance alleged in the petition?

ISSUES 10 AND 11
10. Whether the learned Trial Judges of the Tribunal were not wrong in failing to give proper consideration to the evidence on record by the appellants before arriving at their conclusion that the Appellants failed to prove the allegation of non-compliance with the Electoral Act?
11. Whether having regards to the extant laws the learned trial Judges of the tribunal were not wrong in holding that the Appellants failed to prove their case?

RESOLUTION OF ISSUES 2 AND 17, 3, 5, 6 AND 7, 8, 10 AND 11.
At this juncture, I believe the first port of call is to lay rest the issue with respect to the propriety or otherwise of the annulment and de-annulment by the State Returning Officer of the elections in the contested Local Government Areas of Obingwa, Isala Ngwa North and Osisioma. In the instant case, it been established by evidence that it was the State Returning Officer that purportedly annulled the result of the elections in the three local government areas and that he subsequently de-annulled the annulment. It was on this score that the Tribunal held at page 5,557, Volume 5 of the Record of Appeal, thus:
It is not in dispute that the State Returning Officer nullified election results from Osisioma, Obingwa, Isiala Ngwa LGS and some other units.

The State Returning Officer later de annulled himself. We have checked the law, but there is nowhere in the Electoral Act 2010, 1st Schedule to the Act, Practice Directions and Manuals where the State Returning Officer was been (sic) conferred with such power.

His action was unlawful null and void. An Act which is a nullity has no legal consequences. Odedo vs. Oguegbo 2015 13 NWLR (pt. 1476) 229 at 267 (para d-f) (sic). Subsequently the results in the affected Local Government and polling Units were declared inconclusive and a re-run held in these area on 25/4/2015 and the 1st Respondent was declared the winner.
The petitioners having contested the election held on 25/04/2015 and pleaded same can no longer approbate and reprobate…..’’(The underlining is supplied by us for emphasis)

From the foregoing, it is very obvious that contrary to its findings and conclusion that the Appellants as petitioners were approbating the reprobating, it was the Tribunal that has deliberately omitted to reach the right conclusion. The Tribunal stated the correct position of the law that there is no provision in the Electoral Act or guidelines or manuals which empowers a Returning Officer to cancel or annual an election result. The position of the law on the power of a Returning Officer with respect to election results is settled as provided by Section 68 of the Electoral Act, 2010 (as amended). Section 68 provides that:
(1) The decision of the returning officer on any question arising from or relating to
(a) Unmarked ballot paper
(b) Rejected ballot papers; and
(c) Declaration of scores of candidates and return of a candidate shall be final subjects to review by a tribunal or court in an election petition proceedings under this Act’’,
It follows therefore that while a Returning Officer can declare the scores of candidate in an election, he or she cannot cancel election results. This is the correct import of Section 68(1) of the Electoral Act. This Court, in the case of:
NWOKOLO Vs. UBOH (2012) LPELR – 8019 (CA) Per NWOSU-IHEME, JCA, at p. 7, paras. B-C and p.8, paras. A- C, while construing the above provision, held:

It is thus clear from the foregoing provisions that the decisions of a Returning Officer in relation to the matters mentioned in (a), (b) and (c) above would ensure at the conclusion of an election where he has to decide only on ballot papers used at the election as to whether they were unmarked, and/or rejected and then proceed to make a declaration of the scores of candidates at the election. The decision under Section 68(1) must as a matter of mandating (sic) relate to the matters mentioned therein and to no other matters outside it. Obviously, therefore, a decision that an election was inconclusive is outside the preview of Section 68(1)…..

Malpractices and fraud were not for the Returning Officer to determine but for a tribunal to determine in an election petition challenging an election.
The election having been held in Ika North- East L.G.A. as borne out of the evidence led, it was for the Returning Officer to have declared the result of the election by deciding on the scores of the candidate under Section 68(1) of the Electoral Act and not for him to declare the election inconclusive. He had no power to do so. His action was, therefore, ultra vires and void.
In the instant case, the Tribunal, upon finding and holding that the State Returning Officer had no power to annul and de-annul the election results, would have gone ahead to consider the grievances of the Appellants on the merit. Rather, in what appeared to be a conscious resolve to avoid and evade the determination of the petition on the merit chose to embark on swinging forward and backward, delving into imagination that results were cancelled and elections declared inconclusive and that re-run election were held in the disputed three local government areas. The conclusion does not represent the correct position of the law, based on the evidence before the Tribunal. The Tribunal also complicated the whole matter by proceeding to raise the issue of re-run which was not part of the pleadings of the respective parties nor were the parties afforded opportunity of addressing the Tribunal on same. It is trite law that a court of law cannot raise an issue suo motu and resolve it suo motu. See the cases of: EAGLE SUPER PACK (NIG) LTD Vs. ACB PLC (2006) 19 NWLR (Pt. 1013) P. 20; ALIMS NIG. LTD Vs. UBA (2013) LPELR- 19788(SC) While it is trite law that appellate court do not disturb the findings of lower courts, the law also remain unassailable that this Court will be compelled to do so if such findings are founds to be unwarranted and perverse. See the cases of: (1) AROWOLO Vs. OLOWOOKERE (2011) LPELR – 561 (SC); (2) R-BENKAY NIGERIA LIMITED Vs. CADBURY NIGERIA LIMITED (2012) LPELR -7820 (SC); and (3) RABIU Vs. ADEBANJO (2012) LPELR – 9709 (SC). This uncoordinated conclusion reached by the trial Tribunal is with all respect, unwarranted, unsupportable and patently perverse.

Having found that there was no re-run elections; we are bound to consider the grievance of the Appellants with regards to the allegation of non-compliance with the provisions of the Electoral Act, 2010 (as amended) particularly with respect to the three local government areas, viz: Osisioma, Obingwa and Isiala Ngwa North Local Government areas. The Appellants/Petitioners averred in their Petition thus:

16. Your Petitioners state that the process of the election in Osisioma, Obingwa and Isiala Ngwa North Local Governments entirely, and 9 Polling Units in Umuahia Urban Ward, in Umuahia North Local Government as well as 82 Polling Units in Ugwunagbo Local Government Areas forming part of the on (sic) which the 1st Respondent was returned as the winner of the election did not comply with the criteria outlined in paragraphs 14 -15 above which were substantial, and the non-compliance substantially affected the result of the election, and return of the 1st Respondent as winner thereof.

29. The petitioners state that, save in 14 Local Government Areas where the election duly held, the purported election in the remaining three Local Government Areas of Abia State was not validity conducted and was vitiated by substantial noncompliance with the applicable mandatory provisions of the Electoral Act, 2010 as amended and approved INEC Guidelines and the Manual for Election Officials 2015.

36. Petitioners shall show that with regards to the results credited to the 1st Respondent in OSISIOMA LOCAL GOVERNMEMT AREA-
b. In the local government the total number accredited votes uploaded into the INEC Data Base was 19, 120 voters whereas in the result announced by the State Returning Officer the total number of accredited voters was given as 52, 370.
c. In the local government the total number of votes ascribed to the 1st Respondent in the final results announced by the returning officer was 47, 444 which is double the total number of validly accredited voters in the local government area at the election.
37. Petitioners shall show that with regards to the result credited to the 1st Respondent in the OBINGWA LOCAL GOVERNMENT-
b. In the local government the total number accredited votes uploaded into the INEC Data Base was 33, 062 voters whereas in the result announced by the State Returning Officer the total number of accredited voters was given as 88,917 voters.
c. In the local government the total number of votes ascribed to the 1st Respondent in the final results announced by the returning officer was 82, 240 which is double the total number of validly accredited voters in the local government area at the election.

38. Petitioners shall show that with regards to the result credited to the 1st Respondent in the ISIALA INGWA NORTH LOCAL GOVERNMENT-
b. In the local government the total number accredited votes uploaded into the INEC Data Base was 23, 548 voters whereas in the result announced by the State Returning Officer the total number of accredited voters was given as 88,917 voters.
c. In the local government the total number of votes ascribed to the 1st Respondent in the final results announced by the returning officer was 27,426 which is double the total number of validly accredited voters in the local government area at the election.

In support of the above averments, PW20 testified via his witness statement on oath. The 1st, 2nd and 3rd Respondents’ counsel have all launched a tirade against PW20 that his evidence is hearsay and also that the Tribunal was right to have discountenanced his evidence due to the fact that his credibility was shaken since it turned out that he is not a legal practitioner under the Legal Practitioners Act (LPA) as he claimed. Regarding the credibility of PW20, contrary to the argument of the learned senior counsel of the 1st Respondent, nowhere in the printed record can it be found where PW20 claimed to be a legal practitioner under the LPA as alleged. The witness merely stated that he is a legal practitioner and the context of his claim thereon is more evident during cross examination when he stressed and maintained that he was not called to the Nigerian Bar.

The foregoing reveal that rather than shake his creditability of PW20, his testimony portrays him as a witness of truth because he did not at any time claim to be a legal practitioner within the meaning of the LPA.

As to his evidence being hearsay, it is apparent that PW20 was the Appellant’s State Collation Agent. It is on this basis that he testified at the trial tribunal. We must say that as the 2nd Appellant’s State Collation Agent, PW20 can competently testify as to the happenings at the State Collation Centre and any evidence given in this regard shall not be hearsay as same will be within his personal knowledge as the Agent of the 2nd Appellant. Therefore, we are of the firm view and hold that the PW20, as the Appellants’ State Collation Agent is in the best position to give evidence establishing the allegation of over voting, hence his evidence in this regard cannot be regarded as hearsay.

Meanwhile, to further establish the allegation of over voting in their petition, the Appellants/Petitioners subpoenaed PW19, one Mrs Abimbola Oladunjoye, Head of Unit, Data Management, ICT Department of the 3rd Respondent who testified before the Tribunal and tendered Exhibit PWC2.

The purport of the testimony of PW19 as reproduced above is that not only were Smart Card Readers used for accreditation of voters in the affected local government elections, information of accredited voters from different polling units of the State were uploaded unto the database of the 3rd Respondent and the information is conclusive and correct as to the number of accredited voters. Therefore, in the absence of any evidence to the contrary, the figures indicated on the INEC Data Base Report can be taken as conclusive and the correct in proof of the figures of the total number of accredited voters. Quite surprisingly, none of the Respondents deemed it fit to cross examine the witness on the testimony given by her at the trial of the Petition.
The law is settled that where evidence given by a witness in favour of a party was not challenged by the opposing party who had the opportunity to do so, same can be relied upon by the court which will in turn ascribe probative value to it, as evidence that it neither contradicted nor debunked remains good and reliable evidence. See OBINECHE V. AKUSOBI (2010) 12 NWLR (Pt. 1208) 383 SC.

Ordering of fresh election will arise only where a clear winner did not emerge after the deduction of the illegal votes. Having established that there was over voting in Isiala Ngwa, Obingwa and Osisioma Ngwa local government areas, the entire votes recorded in the area shall be deducted from the overall results declared by the 3rd Respondent. If the unlawful votes from the three local governments areas are subtracted from the total votes of the 1st Respondent which is 264,714, he will be left with, 115, 444 votes. On the other hand, the figures credited to the 1st Appellant are 6, 913 (ISIALA NGWA), 6, 952 (OBINGWA) and 2,685 (OSISIOMA), bringing the total number of votes from the three local governments areas to 16,550. If the unlawful votes are subtracted from the total votes of 180, 882 credited in favour of the 1st Appellant, he will be left with 164,332 votes.
Following the deductions of the unlawful votes garnered from the disputed three local government areas, the 1st Appellant having scored 164, 332 valid votes, as opposed to the 1st Respondent who scored 115, 444 votes, ought to have been declared the winner of Abia State Governorship Elections conducted on the 11th and 25th April, 2015.

Section 140(3) of the Electoral Act, 2010 (as amended) provides that, if the Tribunal or Court determines that a candidate was not validly elected on the ground that he did not score the majority of the valid votes cast in the election, the Tribunal or Court may be shall declare as elected the candidate who scored the highest number of valid votes cast and satisfied the requirements of the constitution and the Electoral Act. In the instant case, we have no doubt from all we have stated hereinbefore that, the 1st Appellant having scored the highest number of valid votes and satisfied the requirements of the 1999 Constitution and other relevant laws. He therefore ought to have been returned as the validly elected Governor of Abia State at the governorship elections held in Abia State on the 11th and 25th April, 2015.

ISSUE 9:
Whether in the light of the pleadings, the evidence on record and the extant laws, the learned trial Judges of the Tribunal were not wrong in holding that the Appellants failed to prove the criminal allegations made in the pleadings?

This issue deals with proof of criminal allegations made by the Appellants/Petitioners. The learned senior counsel for the Appellants addressed this issue in his submission under 1 and 17 above.
The learned senior counsel for the 1st, 2nd and 3rd Respondents also addressed the issue while responding to the submissions of the learned senior counsel for the Appellants under the said issues 2 and 17 already set out earlier on the above in this judgment.

We are of the view that having considered and resolved issues 2 and 17, the necessity of resolving issue 9 is obviated.
Having resolved all the above issues other than the issue relating to the powers of the Returning Officer with regards to cancellation and de-annulment of election results, in favour of the Appellants we hereby hold that this appeal has merit and ought to succeed. The appeal is accordingly allowed.
The judgment of the Tribunal delivered on the 3rd of November 2015 is hereby set aside.
It is ordered that the results of Isiala Ngwa North, Obingwa and Osisioma Local Government Areas of Abia State be and are hereby cancelled.

With the cancellation of the results in three local government areas, the scores of the Appellant band the 1st Respondent are as follows:
1st Appellant 164, 332 votes and the 1st 115, 444 votes.
The election, rerun and declaration of the 1st Respondent are hereby nullified and set aside.
The 1st Appellant, ALEX OTTI, having scored the majority of lawful/valid votes cast at the elections/supplementary elections of 11th and 25th April, 2015 respectively, held in Abia State for the occupation of the seat of Governor of Abia State and having satisfied the constitutional requirement of one quarter of the votes in at least two-thirds of the Seventeen Local Government Areas of Abia State is hereby returned as the duly elected Governor of Abia State.
It is hereby ordered that the Certificate of Return already issued to the 1st Respondent, Okezie Ikpeazu, by the 3rd Respondent, INEC is hereby set aside.
It is further ordered that the 3rd Respondent, INEC shall forthwith issue the Certificate of Return to the 1st Appellant, ALEX OTTI, as the winner of the Abia State Governorship Elections conducted on the 11th and 25th April 2015.
It is hereby ordered that the parties shall bear the costs expended by them in the prosecution and defence of the appeal, respectively.