A few years ago, the National and State Houses of Assembly Election Petition Tribunal, Rivers State, sitting in Abuja delivered its judgment in Andrew Igbonule Uchendu and All Progressive Congress (APC) v. Independent National Electoral Commission (INEC), Senator George Thompson Sekibo and People’s Democratic Party in petition Number EPT/RV/SEN/15/2016, which raises far-reaching issues that touch on the powers of INEC, seeks to shackle this institution statutorily saddled with the responsibility of conducting elections in our country, and more importantly, seek to promote the Nigeria Police Force, its officers and party agents not accredited as observers and monitors as credible arbiters of the electoral process, and makes mockery of democracy and our electoral law.
SUMMARY OF THE NATIONAL ASSEMBLY POLLS HELD IN RIVERS STATE ON 19TH MARCH AND 10TH DECEMBER, 2016 RESPECTIVELY
Following the nullification of the National Assembly election held in Rivers State on the 11th day of March, 2015, INEC scheduled the re-run poll on the 19th of March, 2016, which was substantially marked by violence and disturbances, voter intimidation and security services, including police harassment of voters. The poll into the Rivers State East Senatorial District was invariably concluded in slightly over 1,442 polling units and poll for 506 polling units was thus re-scheduled for the 10th day of December, 2016 as a supplementary re-run election, according to INEC. Following the successful conclusion of the poll on 10th December, 2016, INEC declared Senator George Sekibo as winner, having polled 93,098 defeating Andrew Uchendu of All Progressive Congress who polled 34,193 votes. The defeated candidate of the APC, Andrew Uchendu, headed to the Election petition Tribunal to challenge the election of Senator George Sekibo.
UNDERMINING ELECTORAL PROGRESS USING THE LAW
During the hearing of the election, the admissibility of photocopies of election results and documents in the custody of INEC became a contentious legal issue. Let us be clear that by the provisions of the Electoral Act, 2010, as amended, more particularly section 72, “The Chief Electoral Commissioner or any officer authorized by him shall keep official custody of all documents, including statement of results and ballot papers relating to the election, which are returned to the commission by the Returning Officers’” Further, by section 77 of the said Electoral Act 2010, “The Resident electoral commissioner in a state where an election is conducted, shall within 7 days, after an application is made to him, by any of the parties to an election petition, cause such documents or the certified true copy thereof, to be issued to the said party”.
The above are provisions of the law guiding the conducts of election and election petitions in our country. The Election Petition Tribunal, inauspiciously oblivious of the law, held in page 13 of its judgment:
“The Petitioners also tendered duplicate copies of the said results which were said to have been given to their agents in the polling units after election. These duplicates have the same entries as the ones certified by and obtained from INEC. Through the PW5 a Deputy Superintendent of Police, the petitioners tendered certified copies of the duplicate results of the form EC8A (I), the unit results and other election results lkwerre and Emuoha Local Government Area… We had occasion to pronounce on the admissibility of these police certified copies or results in EPT/RV/HR/01/16- Boniface Emerengwa V. INEC. We did hold in that matter that such document is admissible. This is because the police is statutorily entitled to receive the duplicate/pink copy of the election result under section 63 (3) of the Electoral Act, 2010… we accept the said results tendered by the police as properly tendered and admitted.., since the police is a neutral body which has no stake in the result of the election and election petition. It is better than any contrary document produced even by IINEC. This is because INEC is an interested party…”
Going through the table set out by the Election Petition Tribunal in page 16 of the judgment, the margin of votes casts between the parties, which does not reflect the competitive results elsewhere, shows why the admissibility of the Election results was contentions at the Tribunal. We reproduce the table as follows:
Discerning the judgment, INEC argued that the votes reflected above were cancelled because in many instances, and in many polling wards and units, votes outstripped the number of PVCs distributed by INEC. The admissibility of the election results shown above would invariably swing the election in favour of the petitioner, Andrew Uchendu, so a spurious way had to be contrived by the tribunal to make the results admissible.
SITTING CASE LAWS ON THEIR HEADS
The Tribunal erred in law by making photocopies of election results (and not duplicate pink copies of results) admissible, and even more ridiculous, making photocopies of results certified by the police as admissible in law. Gleaning section 104 (1) of the Evidence Act, 2011, it is only a public officer or institution or Agency having custody of a public document which any person has a right to inspect that can certify such documents. Section 72 of the Electoral Act, 2010 places electoral documents in the custody of INEC, subject to public access under section 77, and by the purport of section 104 (1) of the Evidence Act, the photocopies of election results capriciously admitted by the Tribunal ought to have been certified by INEC. No more.
Our appellate courts and case laws are explicit about the inadmissibility of photocopies and wrongly certified documents. In Bilikisu Tinuola Gambari v INEC (2012) LPELR-9080, the Court of Appeal held that:
“by the combined effect of sections 72 and 77 of the Electoral Act, 2010, as amended, it is only the Chief Electoral Commissioner or an officer designated by him that can certify copies of any electoral documents as true copies of the originals.”
This correct interpretation of the Electoral Act was given judicial seal of approval by the Supreme Court in Goodwill & Trust Investment Ltd and another v Witt & Bush Ltd (2011) LPELR 1333, thus:
It is on record that the plaintiffs tendered a photocopy of a document which was certified by the registrar of
the High Court of Lagos State, Ikeja, when in fact, if the 2’ plaintiff was desirous of tendering only a copy of the registration document, it should have been certified by an official of the Corporate Affairs Office, the document being a public document…
How the Tribunal in holding that the Court of Appeal Division in Nnadi v Ezike (1999) 10 NWLR (Pt 622) 228 at 238 applies in its spuriously probative evaluation of the photocopies of election results is shocking, in the face of case laws. What is however not shocking is the failure of the Tribunal to distinguish the petition before it and the Court of Appeal case of Nnadi v Ezike.
In Nnadi v EZIKE, the Tribunal wrongly rejected the Duplicate Original Copies of election results that were tendered by the police, but in the judgment of the Tribunal, it wrongly admitted photocopies of documents, which INEC denies to have no similitude to the election results in its possession. In short, certification did not arise in Nnadi v Ezike because the Duplicate Original Copies were tendered.
The reliance of the Tribunal on documents that were tendered by an institution that is not the maker of the documents, as prescribed by sections 37 and 38 of the Evidence Act, 2011, portends great danger to the sanctity of our electoral process, to the exercise of the statutory powers of INEC; and further reliance on the depositions and testimonies of party agents who purportedly signed election results of elections they were not accredited to cover constitutes a great danger to the electoral process.
As a Public Interest Advocacy Group, we are alarmed by the implication of the judgment and worried that if not overturned by the appellate court, the judgment will weaken INEC in its exercise of its powers, arm desperate politicians who would do everything imaginable and unimaginable t subvert the electoral process by using the police, as the “New Election Results Certification Force.” It is our hope that all parties involved in the petition will seek the adjudicatory intervention of the Court of Appeal. The judgment must not be allowed to stand.
Abdul Mahmud, ESQ
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