All Progressives Congress v. Hon. Adagio Inangaebite Austin & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This is a cross-appeal against the judgment of the State and National Assembly Election Tribunal, Bayelsa State Coram: Hon. Justice Sabiu B. Shuaibu, Hon. Justice Sylvester N. Odili and Hon Kadi Abba Kaka Kime delivered on 2nd October, 2023 in respect of petition No: EPT/BY/SHA/13/2023.

The petitioners filed petition No. EPT/BY/SHA/13/2023 on 7th April, 2023 challenging the return of the 4th cross-respondent as the duly elected winner of the March 18 State Assembly election for Brass Constituency II of Bayelsa State.

Judgment in the said petition was delivered on 2nd October, 2023 upholding the return of the 4th cross-respondent.

The cross-appellant being dissatisfied with the judgment on some part of the judgment of the tribunal filed a notice of appeal on 21st October, 2023.

The notice and grounds of cross appeal contains two (2) grounds located at pages 1029 – 1037 of the record of appeal. The said notice and grounds of cross-appeal shorn of particulars are hereunder reproduced as follows:

Grounds of appeal

Ground one:

The honourable tribunal erred in law and misdirected itself, thereby occasioning a miscarriage of justice when it held that exhibits P15 series (the BVAS report for the Governorship/State House of Assembly Election in Brass II State Constituency) tendered by the 1st and 2nd cross-respondent is admissible in evidence thus:

“The certificate of compliance with the provisions of section 84 of the Evidence Act , the BVAS report and the official receipts on INEC are accordingly admitted in exhibit P15 series.

Ground two:

The honourable tribunal erred in law, misdirected itself and thereby occasioned a miscarriage of justice when it wrongly relied on Exhibit P15 series (the BVAS report for the Governorship/State House of Assembly Election in Brass II State Constituency), inadmissible evidence tendered by the 1st and 2nd cross respondents and exhibit RII series (polling Unit Results Form EC8A (1) tendered by the 3rd respondent to hold that:

“It is clear from the chart above that accreditation in unit 003 of ward 3 on the exhibit P15 – BVAS report is 141. Total number of valid votes cast is 499. In unit 003 of ward 4, the accreditation by BVAS is 162. Total votes cast in unit is 164. In unit 010 of ward 4, the total accreditation on BVAS is 81. The total votes cast is 244. In unit Oil of ward 4, the total accreditation by BVAS is 0 votes. Total number of votes cast is 157. In unit 016 of ward 4, total accreditation by BVAS is 46. Total number of votes cast in the unit is 238. By the provisions of section 51(2) OF the Electoral Act, 2022 4….51(2) where the number of votes cast at an election in any polling unit exceeds the number of accredited votes in that polling unit the presiding officer shall cancel the result of the election in whose units. A careful examination of the chart above will reveal that there is overvoting in all the five polling units in controversy in this petition. By the provisions of section 51(2) of the Electoral Act, 2022 cited above the results in all the five polling units in contention must therefore be cancelled. The results in unit 003 of ward 3, unit 003 of ward 4, unit 010 of ward 4, unit 011 of ward 4 and unit 016 of ward 4 are hereby cancelled.”

At the hearing of the cross appeal on 13 November, 2023 Godfrey Otiotio, Esq for the cross-appellant identified and adopted the cross-appellant’s brief filed on 1st November, 2023. The two issues formulated by the learned counsel for the cross-appellant are: