PUC successfully defended the Election and return of the Akwa Ibom State Governor, Udom Gabriel Emmanuel at the Supreme Court through the twin Appeals filed on the Governor’s behalf challenging the Court of Appeal decision which nullified the election and return of Mr Udom Gabriel Emmanuel and ordered a fresh election through-out the State.
These highly contentious and complex Appeals, Appeal Nos. SC.1/2016 – Udom Gabriel Emmanuel v. Umana Okon Umana & 5 Ors and SC.3/2016 – Udom Gabriel Emmanuel v. Umana Okon Umana & 5 Ors arose from the Petition, filed by Umana Okon Umana and his political party, the All Progressive Congress before the Akwa Ibom State Governorship Election Petition Tribunal. In a Judgment delivered on 03 February 2016, a seven man panel of the Supreme Court, sitting in Abuja unanimously allowed the Appeals, set aside the Judgment of the Court of Appeal and affirmed the election and return of Governor Udom Emmanuel in the Akwa Ibom State Governorship Election held on 11 April 2015.
In specific terms Petition No. EPT/AK/Gov/1/2015 – Umana Okon Umana & Anor v. Udom Gabriel Emmanuel & 5 Ors filed by the Petitioners challenged the victory of Udom Gabriel Emmanuel at the Governorship polls on twin grounds, viz: that-
1 The Election was invalid by reason of corrupt practices and/or non-compliance with the Electoral Act, 2010 (as amended); and
2. The 1st Respondent, Udom Gabriel Emmanuel was not elected by majority of lawful votes cast.
The Petitioners in the course of trial before the Tribunal called 52 Witnesses out of which 4 were said to be expert witnesses, and tendered several exhibits including all the electoral results, electoral forms and Voters’ Registers. The crux of the Petitioners’ case was that the Card Reader Machine was not used in the course of the Election and that violence, killing, snatching of ballot boxes, illegal thumb printing, and non-collation of results characterised the Elections.
However, PUC on behalf of His Excellency, Mr Emmanuel challenged the Petition and indeed, filed a robust Reply against same. PUC’s case right from the Tribunal was that the Election was conducted in substantial compliance with the Electoral Act; the Election was peaceful and Governor Emmanuel was validly elected by the majority of lawful votes cast. In the course of trial, PUC was able to demonstrate that the purported expert witnesses called by the Petitioners lacked the necessary qualification and skills to testify in the capacity they had presented themselves. PUC therefore urged the Tribunal to disregard their testimonies and reports, and reject their evidence in its totality. PUC further contended that the case of the Petitioners was riddled with material contradictions in terms of pleadings and the evidence adduced at trial. PUC also highlighted the paucity of evidence adduced by the Petitioners in terms of numbers and the failure of the Petitioners to prove the allegation of non-compliance and corrupt practices on a polling unit by polling unit basis as required by law. In specific terms, out of over 2980 polling units in Akwa Ibom State, the Petitioners called only 52 Witnesses and out of whom, only 3 polling units agents testified.
On the issue of the Card Reader, we argued that aside the fact that the Card Reader Report was not tendered through the maker, the Card Reader Report marked as Exhibit 317 is not conclusive of the number of voters accredited within the State and that in any case, the INEC Guidelines provision on Card Reader is in conflict with Section 49 of the Electoral Act 2010 (as amended) which provides for use of Voters’ Registers for the accreditation of voters. Finally, PUC surmised that no weight should be accorded to most of documents tendered by the Petitioners, particularly, the Card Reader Report; the Police Report; the Report of the Nigerian Security and Civil Defence Corps and the Video clip tendered, as they were not tendered through the makers of the documents, to afford us the opportunity to cross examine them and test the veracity of those documents.
Though, the Tribunal rejected the evidence of the purported expert witnesses and refused to rely on the Card Reader Report, as urged on it by PUC, it however, went ahead to nullify the election in 18 out of 31 Local Government Areas in Akwa Ibom State on the ground that voters were disenfranchised, relying in most cases on the hearsay evidence of only one or two witnesses to nullify an entire Local Government Area, contrary to the settled position of the law for polling unit by polling unit proof.
Governor Emmanuel was aggrieved with the Tribunal’s decision and consequently instructed PUC to lodge an appeal thereof. PUC indeed, filed an Appeal at the Court of Appeal challenging the decision nullifying elections in 18 Local Government Areas. The Petitioners also cross-appealed in respect of the decision upholding elections in 13 Local Government Areas. PUC’s Appeal to the Court of Appeal was unsuccessful as the Court of Appeal dismissed same, upheld the Petitioners’ Cross-Appeal and nullified the entire Election in the State relying heavily on the Card Reader Report. The Appellate Court held that there was over-voting, as the total number of votes cast, were in excess of the total number of accredited votes submitted through the Card Reader Report.
It is critical to point out that the Court of Appeal’s decision changed the entire complexion of the case, as the issue of over-voting was not part of the Grounds of Appeals lodged by the Petitioners. The Court of Appeal equally raised several fresh issues on its own and resolved them in favour of the Petitioners without calling parties to address it on those fresh issues. Surprisingly, contrary to the clear principles of law that allegations of crime in election petitions are to be proved beyond reasonable doubt and that proof of irregularities at an election must be proved polling unit by polling unit, the Court of Appeal merely relied on an online newspaper article and held that the proof beyond reasonable doubt was not required at all times and the issue of polling unit by polling unit requirement is moot where the issue of over voting has been successfully raised.
Dissatisfied with the Court of Appeal’s Judgment, PUC, on behalf of Governor Emmanuel, appealed to the Supreme Court anchoring the appeal primarily on the ground that the Court of Appeal’s decision was manifestly perverse. At the Supreme Court, PUC re-stated its earlier arguments at the Tribunal on the paucity of Petitioners’ evidence and their failure to discharge the burden of proof on a polling unit by polling unit basis. We further argued that the Court of Appeal infringed on the right to fair hearing of Governor Emmanuel by its refusal to invite parties to address it on the fresh issues raised in respect of alterations and mutilations of result sheets before resolving those issues in favour of the Petitioners. Similarly, we argued that the Card Reader Report cannot establish over-voting in view of the fact that Section 49 of the Electoral Act, only makes reference to the Voters’ Register for the purposes of determining accreditation of voters at election and that Card Reader Report is not howsoever recognised by the Act. PUC equally urged the Supreme Court to reject the attempt by the Petitioners to resort to their expert evidence that was out-rightly rejected by the Tribunal, and that the Petitioners having not appealed those findings are bound by same. Lastly, we argued that the Court of Appeal was wrong to have discarded the requisite proof beyond reasonable doubt of criminal allegation and instead opted to rely on newspaper articles.
The Supreme Court upheld all the arguments canvassed by PUC and indeed, allowed the Appeal. The Supreme Court on 15 February 2016 while giving reasons for its decision held as per Nweze JSC’s lead Judgment that the Lower Court was wrong to have relied on newspaper articles instead of established principles of law in Section 135(1) of the Evidence Act, 2011, (“the Evidence Act”) on proof beyond reasonable doubt of criminal allegations. The apex Court also berated the Court of Appeal for holding that there was anarchy in Akwa Ibom Governorship Elections of 11 April 2015 without reference to any evidence on the Records to support such a finding. The Supreme Court further held that the Police Report tendered by the Petitioners clearly showed that the election in Akwa Ibom State was generally peaceful. On the issue of Card Reader Report, the Supreme Court held that the said report ought not to have been relied upon by the Court of Appeal, not only because the maker was not called as a witness in line with Section 34 of the Evidence Act, but also because of the evidence of the witness called by INEC who testified that data was still being uploaded from the Card Readers to the server three weeks after the election. The apex Court also highlighted that the evidence on record does not contain the accurate number of accredited voters and thus found that the Petitioners could not establish any nexus between the Voters’ Register and the Card Reader.
The Court concluded by relying on the cases of Shinkafi v. Yari in Appeal number SC.907/2015 and Omisore v. Aregbesola (2015) 15 NWLR (pt.1482) 205 to hold that the Petitioners cannot establish over-voting by dumping exhibits before the Court as the Court cannot constitute itself into a Panel of Enquiry. Consequently, the Supreme Court affirmed the Tribunal’s rejection of the expert witnesses and dismissed the Petition.