Emmanuel Jime & Anor V. Independent National Electoral Commission & Ors (2009)

LawGlobal-Hub Lead Judgment Report

ONYEKACHI AJA OTISI, J.C.A.

The Appellants, who were the Governorship candidate and the political party that sponsored him respectively at the Governorship Election held in Benue State on March 9 and 23, 2019 filed a petition before the Benue State Governorship Election Petition Tribunal, Coram H.A Olusiyi. J., A.A. Ajeigbe, J. and G.F Ette, J., to challenge the conduct of the said Governorship Election by the 1st Respondent wherein the 2nd and 3rd Respondents were returned as the winners thereof.

The Appellants? petition was accompanied with a list of documents, including the Card Reader Report, which was tendered before the said Tribunal. The 1st, 2nd and 3rd Respondents filed their respective replies. The Appellants also filed separate replies, upon the receipt of the respective replies of the Respondents. Pre-hearing session was held after which the case proceeded to hearing. At the proceedings of 16/7/2019, the Appellants tendered the Certified True Copies of a number of documents including the Smart Card Reader Report of the election being challenged through PW15, one Joe Abaagu, Esq, who  as

1

called by the Appellants. Although objections were taken by the Respondents to the admissibility of some of the documents tendered, there was no objection to the Smart Card Reader Report on any grounds. In a considered ruling, the Tribunal overruled the objections and held that the documents were admissible. However, while numbering the exhibits and without any prompting from any of the parties or Counsel, the Tribunal ruled concerning the Card Reader Report as follows, page 527 of Volume 6 of the Record of Appeal:
“What P.W.15 identified was certified true copies of Documentary Data From Card Reader Machines. We do not have any such document so headed in those terms before us. What is before us is captioned Certification By The Independent National Electoral Commission (INEC) ICT DEPARTMENT, etc they are not the same the said document is rejected and marked Rejected No. 1”
The Appellants, being dissatisfied with the said ruling lodged the instant Appeal by Notice of Appeal filed on 26/7/2019, on a sole ground of appeal; pages 555 to 559 of Volume 6 of the Record of Appeal.
?
In line with the Rules of this Court, parties filed Briefs of

2

Argument, which were adopted by learned Counsel of the respective parties. The 1st Respondent, the 2nd Respondent and the 3rd Respondent all respectively filed Preliminary Objections to the competence of the appeal. The Appellants filed Reply Briefs to the Briefs of the 1st, 2nd, and 3rd Respondents. As is customary, the Preliminary Objections raised by the Respondents shall first be considered.

Preliminary Objections of the 1st, 2nd and 3rd Respondents to Appeal No CA/MKD/EP/GOV/12/2019
The Preliminary Objection of the 1st Respondent was on the following grounds:
i. The Smart Card Reader Report (the subject matter of this Appeal) has now been admitted in evidence by the Election Tribunal on the 31st July, 2019 when it was tendered again by the Appellants, hence;
ii. The Appeal is merely academic, theoretical, hypothetical and redundant; and
iii. The Appeal has been overtaken by events.

For the 2nd Respondent, the Court was urged to dismiss the appeal in limine or strike it out, on the following grounds:
1. That the appeal is premature and
2. That the appeal is an academic exercise

?For the 3rd

3

Respondent, the Court was urged to strike out the appeal for the following reasons:-
The appeal is academic, hypothetical, theoretical and an abuse of Court process and a waste of precious judicial time.

The common thread running through the objections raised by the 1st, 2nd and 3rd Respondents respectively is that this appeal has been rendered an academic exercise in that the subject matter of the appeal, the Smart Card Reader Report, was subsequently admitted in evidence on 31/7/2019, when it was tendered again by the Appellants through another witness.

Respective parties through their Counsel advanced arguments and cited pertinent decisions in support of their objections. The Appellants relied on their Reply Briefs in response to the arguments of the respective Respondents.