George Okoh in Makurdi
The Court of Appeal sitting in Makurdi, Benue State capital yesterday affirmed the election of Senator Emmanuel Orker Jev as Senator representing Benue North West Senatorial District.
In a judgement delivered by Justice O. A. Ortisi, the court held that the 14 grounds of Appeal was a mere hypothetical and an academic exercise.
The court particularly, hinged it’s judgement on grounds two of the Appeal wherein the appellant (Akume) complained that the election was not conducted in compliance with the Electoral Act 2010 as amended.
While relying on Ojukwu Vs Yar’Adua, Justice Ortisi said the failure to adhere to guidelines cannot render an election invalid, adding that the issue was whether the appellant brought his Appeal in compliance with section 138 of the Electoral Act.
According to her, emphasis should be that the regulations and guidelines flow from powers given to the Independent National Electoral Commission, INEC, hence the complaint of the appellant must also, flow with section 138 sub(2) of the Act as amended, noting that failure to apply for INEC manual as complained by the appellant is not enough to invalidate an election.
“Guidelines and regulations of INEC in the conduct of elections cannot be elevated above the Electoral Act. Distinction must always be drawn between the law made by a legislative body on card reader and the Act. Non-use of smart card reader cannot invalidate an election. Guidelines and regulation are meant to complement the Electoral Act. No provision of guidelines can override the Act,” she maintained.
Resolving issue one which focused on complaint by the appellant that Senator Emmanuel Orker Jev was not duly elected by lawful votes cast, the court observed that the testimonies of the witnesses especially Petitioner’s witness(PW) 20 who is the Appellant’s star witness was based on mere hearsay and as such, does not carry weight.
Justice Ortisi noted that a party who is not the maker of a document cannot give evidence on it. Even as she accused the appellant of attempt to smuggle documents which he did not plead through the back door.
“The appellant failed to relate documents to areas of the case where he complained of over voting. They failed to prove polling unit by polling unit issue of malpractice. We cannot rely on hearsay to challenge an election result. They failed to prove that substantial non-compliance affected the result of the election. The burden of proof lies on the petitioners. He who asserts, must prove.
“We find no merit in the appeal. It fails and subsequently, dismissed. We award the sum of 300,000 naira to the respondent(Sen. Jev)”, she stated.
Reacting to the judgement, counsel to Sen. Jev Edward Ashiekaa SAN, acknowledged the industry of the Appeal Court Judges for remaining firm.
INEC counsel Tavershima Pusa described the judgement as vindication of the Commission that it conducted a credible election. While counsel to George Akume Ishaq Dikko, SAN accepted the decision of the Appeal Court as the final arbiter in the matter.
“The court has spoken and there is nothing more anyone can do,” Dikko said.