➥ CASE SUMMARY OF:
Abubakar Atiku & PDP v. INEC & Ors. (CA/PEPC/05/2023, 6th of September, 2023)
by Branham Chima.
- Abubakar Atiku
- Peoples Democratic Party (PDP)
- Independent National Electoral Commission
- Tinubu Bola Ahmed
- All Progressives Congress (Consolidated)
➥ SUBJECT MATTER
Presidential election of 2023.
➥ LEAD JUDGEMENT DELIVERED BY:
H.S. Tsammani, JCA.
➥ CASE FACT/HISTORY
This is an election petition by the two petitioners against the 1st, 2nd and 3rd Respondents. The 1st petitioner, Abubakar Atiku, was a candidate at the Presidential Election held in Nigeria on 25th February 2023. He was sponsored by the 2nd petitioner, Peoples Democratic Party (PDP), a registered political party in Nigeria. The 1st Respondent, Independent National Electoral Commission (INEC), was established as one of the executive bodies created in section 153(1)(f) of the Constitution of the Federal Republic of Nigeria (1999) with power to, among others, organise, undertake and supervise all elections to the offices of the President and vice-president and others. On Saturday the 25th of February 2023, the 1st Respondent conducted election into the offices of the President and the Vice President of the Federal Republic of Nigeria and the National Assembly. The Petitioners and the 2nd, 3rd Respondents along with sixteen others participated in the Election. At the conclusion of the Election, the 1st Respondent declared the 2nd Respondent as the duly elected President of the Federal Republic of Nigeria with 8,794,726 votes. The 1st Petitioner who was sponsored by the 2nd Petitioner came second with 6,984,520 votes. The petitioners were aggrieved by the outcome of the election so they filed jointly this petition to challenge the Election.
The grounds for the petition were four, and these were stated as follows:
(a)The election of the 2nd Respondent is invalid by reason of non compliance with the provisions of the Electoral Act, 2022.
(b) The election of the 2nd Respondent is invalid by reason of corrupt practices.
(c) The 2nd Respondent was not duly elected by majority of lawful votes cast at the Election.
(d) The 2nd Respondent was at the time of the Election not qualified to contest the Election.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: ]
I. Whether paragraphs 82-86, 87-91, 92, 95, 96, 98, 102, 103, 114, 115, 116, 118, 121, 126, 129, 133, 135, 136, 137, 143, 144 and 146 of the Petition are imprecise vague and without necessary particulars of the allegations?
RULING: IN RESPONDENT’S FAVOUR, IN PART.
A. THE PARAGRAPHS ARE IMPRECISE AND DOES NOT CONTAIN SPECIFIC PARTICULARS
[‘The complaint of 1st Respondent is that the petitioners in their petition did not state their case as clearly’ as required by Paragraph 4(1)(d) of the Electoral Act 2022 to enable it respond properly to it. It complains that petitioners’ complaints were vague, imprecise and lacking in particulars. It does not appear to me that this complaint can by any means be waived away as idle. If anything, even the petitioners seem to have admitted that they did not plead those necessary facts; for their response to that contention, as shown earlier, is rather that they pleaded a Statistician’s Report which contains the required details of the polling units where the’ corrupt practices’ they alleged took place. Incidentally, the said Report – a very voluminous four-part document they later tendered through its maker Mr Samuel Oduntan, P.W.21, during the trial, shows on its face that it did not even exist at the time they filed their petition and so was not served on Respondents along with the petition to enable them exercise their constitutionally guaranteed right of responding fairly to the’ corrupt practices’ alleged particularised in it, and if necessary, also engage their own expert to reply to it. Yes, the principle of incorporation by reference relied on by them, petitioners, is part of our adjectival law and is supported by a fairly long line of cases including M.M.A. V. N.M.A. (2012) 18 N.W.L.R. (Pt. 1333) 506 @ 533 546, 531, 553 (SC), Ekpemupolo & Ors v. Edremoda & Ors (2009) LPELR-1089 (SC) p. 24-25; J.F.S Investment Limited v. Brawal Line Ltd & Anor (2010) 18 NWLR (Pt. 1225) 495 @ 540, Eloho v. Idahosa (1992) 2 NWLR (Pt. 223) 323 @ 3350, Abod Brothers Limited v, Niger Insurance Co. Ltd & Anor (1974) 4 ECSLR 525 @ 536, but that principle cannot by any means override the fair hearing/trial provisions of section 36 of the 1999 Constitution of this country which also underpins the rationale for exchange of pleadings by parties. See once again the dictum of Nnaemeka-Agu, JSC, in Atanda v. Ajani supra that “the rule which required every fact upon which a party intends to rely at the hearing to be pleaded goes to the fundamentals of justice. For no one can defend the unknown. If one has to defend or counter a fact made by his adversary, the one must have due notice of that fact to enable him prepare for his defence.” A Statistician’s Report that is supposed to contain missing particulars in a petition but which was only filed in the middle of hearing of the same petition, long after the time for exchange of pleadings had closed and even after called as many as sixteen witnesses in proof of their case, as happened in this case, cannot serve that purpose of audi alteram partem let the other party be heard too. In short, the tactics employed by the Petitioners in this case as regards their pleading and the Statistician’s Report referenced in it is to say the least most unfair and definitely negates the current practice regime that emphasizes frontloading of processes. Such dishonourable practice can only be likened to the unlawful boxing tactic of hitting one’s opponent below the belt or from behind, which in the sport of boxing, is penalised promptly with deduction of points. It cannot be different here.’
‘It fails to meet both the requirements of clear pleading of facts of the petition under Paragraph 4(1)(d) of the First Schedule of the Electoral Act 2022 and Paragraph 15 of the same First Schedule earlier cited.’]
II. Whether the Reply filed, having new facts, by the Petitioners is competent?
RULING: IN RESPONDENT’S FAVOUR.
A. THE REPLY CONTAINED NEW FACTS AND THUS UNFAIR AND INCOMPETENT
[‘Guided by all these and Paragraph 16(1)(a) of the First Schedule of the Electoral Act 2022, it does not by any means appear to me that the new facts of (a) conviction/fine, forgery, and dual citizenship of 2nd Respondent introduced by Petitioners into their Reply, (b) the additional averments of how results could not have been uploaded to INEC’s IRev after the 25th day of February 2023, and (c) whether it was done at all and the relevant officials of INEC could not have been involved in it, not to even talk of the repetitions in the Reply of averments already made by petitioners in their petition, can pass as reply filed pursuant to Paragraph 16(1)(a) of the First Schedule of the Electoral Act 2022. Particularly as it relates to the further details’, as Petitioners labelled them in their Reply, of non-qualification of 2nd Respondent, contained in paragraph 2.1(b) of their Reply, it bears reiterating that all that the petitioners averred to on it in paragraph 146 of their petition is the bare statement that “The Petitioners aver that the 2nd Respondent was at the time of the election, not qualified to contest the election, not having the constitutional threshold.” No details whatsoever was given by them of what they meant by 2nd Respondent’s non-qualification, so 1st Respondent, who was obviously satisfied that 2nd Respondent was qualified to contest the election by the documents he presented to it, also simply joined issues with them in a similar general manner. It is now through their Reply that Petitioners, who themselves seemed to have had no clear idea of what they meant by 2nd Respondent’s non qualification for the election or simply deliberately kept it back when filing their petition, want to now introduce through their Reply at a time when respondents have no further right of responding to them. Such unfair tactics cannot, and is not, allowed by our law.’
‘In summary, 1st Respondent’s application of 9th May 2023 succeeds in its entirety. Accordingly, paragraphs 1.2 (i) (ii), (iii), (iv) (v) and 2.1(b), (c) and (d) of the Petitioners’ Reply filed on 20th April 2023 in response to the reply of 1st Respondent, together with the two witness statements on oath and the List of documents which accompanied that Reply, are all hereby struck out.’]
III. Whether the deposition of witnesses not listed while the petition was being filed is competent?
RULING: IN RESPONDENT’S FAVOUR.
A. ALL WITNESS DEPOSITION NOT FILED ALONGSIDE THE PETITION WILL BE DISCOUNTENANCED
[‘The long and short of all the foregoing is that the objection of the respondents to the witness statements of P.W. 12 (Egwuma Friday), P.W.13 (Grace Timothy), P.W.14 (Grace Ajagbona), P.W.15 (Abidemi Joseph), P.W. 16 (Miss Edosa Obosa), P.W.17 (Miss Alheri Ayuba), P.W.18 (Miss Sadiya Mohammed Haruna), P.W.21 (Mr. Samuel Oduntan the Statistician); P.W.23 (Janet Nuhu Turaki), P.W.24 (Christopher Bulus Ardo), P.W.25 (Victoria Sani), P.W.26 (Hitler Ewunonu Nwala – forensic Expert), and P.W. 27 (Mr. Mike Enahoro-Ebah, Legal Practitioner) which did not accompany the Petition as required by Paragraph 4(5)(b) of the First Schedule to the Electoral Act, is hereby sustained and the said witness statements, being incompetent, are hereby struck out and expunged from the records of this court. The further consequence of that decision is that, given the provisions of Paragraph 41(3) of the same First Schedule to the Electoral Act 2022 stating that: “There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition;” it follows that all the evidence, including evidence in cross-examination and all documents (Reports included, namely PAH1, PAH2, PAH3 and PAH4 and PAR1A, PAR1B, PAR1C, PAR1D, PAR1 E and PAR1 and PBD, PBD1A, PBD1B, PBD1C, PBD1D, PBD1A, PBD2A, PBD3, PBD4, PBE1, PBE2, PBE3, PBE4, PBE5, PBE6, PBF1, PBF2, PBF3 and PBF4) coming from and tendered by the said Petitioners’ Witnesses, namely P.Ws. 12, 13, 14, 15, 16, 17, 18, 21, 22, 23, 24, 26 and 27 aforementioned, are incompetent and hereby also expunged from the records.’]
IV. Whether the failure to indicate certification fee on the certified public document is fatal?
RULING: IN PETITIONERS’ FAVOUR.
A. IT IS NOT NECESSARY TO INDICATE THE FEE PAID FOR CERTIFICATION ON THE CERTIFIED DOCUMENT
[‘Payment of certification fees is only a condition-precedent to the certification, so it could be stated in any other place, including another document. That point, this court also made plain in answer to a similar argument in Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 @ 187 when it said that: “Payment of legal fee on application for a certified true copy is not part of the condition to make a document so certified a certified true copy. It is only a condition which must be fulfilled before the officer certifies a document.” See also Uzoma v. Asodike (2010) ALL FWLR (Pt. 548) 853 @ 868-869; ANPP v. PDP (2006) 17 NWLR (Pt. 1009) 467 @ 490 where it was said that certification fee payment contained in separate documents is sufficient. In this case, not only is there evidence of certification fee payment by petitioners first in the form of Exhibit PD, showing payment by petitioners to INEC of the sum of #150,967.50 for some documents, there is also a second INEC Receipt in INEC’s own letter-head and attached to Exhibit PAF 4C. This latter document evidencing further payment of certification sum of #6, 696.301.50k by the petitioners’ “Atiku/PDP Legal Team”, shows that it was made vide Receipt No RRR: 27084265 3235 and on INEC’s Receipt No 069727 of 25-05-2023. It specifically states on its face thus: “.. the sum of Six Million, Six Hundred and Ninety-Six Thousand, Three Hundred and One Naira and Twenty-Five Kobo only being Payment for CTC IPO Electronic of copy of data level (not very legible) with time stamp/event history/polling units of EC8As & S yet to be uploaded, Form EC9 & Other documents 2023 Presidential Election.” (Italics ours) All that, in my opinion, is sufficient evidence of certification fee payment, even more so when the receipt indicates that the said payment also covers other documents’ outside those specifically mentioned therein. The burden had thus shifted to 1st Respondent (INEC) to show that the monies it received from petitioners for certification fee payment did not cover the documents they are now talking about, which documents INEC interestingly also certified. That burden, INEC never discharged, especially when account is taken of the fact that it did not even give the amount assessed, if any, that petitioners were owing them for certification. By the provisions of section 104(1) of the Evidence Act an applicant for certification of public document is only obliged to pay what is assessed by the public officer. What is more, the mere fact that respondent certified the said documents for petitioners, coupled with the evidence of certification fee payment by petitioners in Exhibits PD and PAF 4C, sufficiently triggers the provisions of section 168(1) of the Evidence Act 2011 that says “when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” This ground of the objection is therefore overruled.’]
[MAIN PETITION: DISMISSED]
I. Whether the return of the 2nd Respondent in the election to the office of the President of the Federal Republic of Nigeria held on 25th day of February 2023 was invalid by reason of substantial non-compliance with the provisions of the Electoral Act, 2022.
RULING: IN RESPONDENT’S FAVOUR.
A. THE EVIDENCE OF THE COLLATION AGENTS WHO TESTIFIED AS TO WHAT HAPPENED IN THE POLLING UNIT ARE HEARSAY FOR NOT BEING PRESENT AT THE POLLING UNIT
[‘It follows, therefore, that PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11, PW19, PW20, PW22, who were State and National Collation agents of the petitioners can only testify of the events in their units or Collation centres where they voted or acted as agents and not all over the states of the Federation. The Polling agents as presented in this petition, it must be noted, are not shown to be experts. The issue of their analysing results of the election at the Ward, Local Government, State and National Level without calling Polling Unit agents who witnessed the real casting of votes and events at the voting units cannot therefore arise. They cannot validly testify of non compliance at the Polling Unit level. Their evidence can only count as to what they saw, not what they were told by their field agents. What they were told is hearsay evidence. Section 38 of the Evidence Act 2011 specifically states that hearsay evidence is not admissible except as provided for in the law. This Court and the Supreme Court in several cases have explained the intendment of this Legislation. In JAMB V. ORJI (2008) 2 NWLR (PT. 1072) 552, the Court held: “What then is hearsay? Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was made.” See also UTTEH V. STATE (1992) LPELR6239; UKUT V. STATE (1995) LPELR-3357(SC); KASA V. STATE (1994) LPELR-1671 (SC), BUHARI V. OBASANJO (2005) LPELR-815 (SC). It is therefore settled law that hearsay evidence is not admissible to prove a fact of non-compliance with the Act. It follows that the evidence of the collation agents in this instant case who are PW1, PW2, PW3, PW5, and PW7 relating to suppression of votes, multiple thumb printing of ballot papers, entering of wrong scores/results, disruption of voting, are inadmissible hearsay and are hereby discountenanced.’
‘The irony, though, is that the witnesses did testify to a peaceful and valid election in their polling units where they voted and then turned around to give evidence of alleged infractions in polling units where they were not present. Their testimonies in that respect are hearsay. Hearsay evidence is not admissible and has no value in proving the petition filed by the Petitioners.’]
B. ALLEGATIONS WERE NOT PROVED
[‘A closer look at the Reports, EXHIBITS PAH1PAH3, will indicate that the witness was talking of 5,270 Polling Units wherein he claimed that Form EC8A series were altered and or not signed. It also talked of 15,002 Polling Units where Form EC8A’s were not stamped and signed, yet all that is contained in the report are figures and data of these forms. None of the physical forms was exhibited in the Report or tendered separately by any of the witnesses. In that situation, it is very difficult for the court to ascertain the truth of the allegation that several Forms EC8A series had a lot of alterations and that they were not signed by the presiding officers. The law particularly requires that the presiding officers must sign the results. Signing form EC8A is subscribing to the authenticity of the results. Where there is allegation that the Forms were not signed, it must be clearly proved by the Petitioners. The result Forms must be presented in Court for the Court to verify lack of signature/stamp and any alteration on the forms. Since PW21 who authored Exhibits PAH3 and PAH4 did not place in his report, and the Petitioners did not call any of the Polling Unit agents to testify and place the Forms before the court to give vent to the allegation of alteration and non-signing of the Form EC8As for the 5,270 Polling Units listed in EXHIBIT PAH2 and the form EC8As not signed and stamped for the 15,002 Polling Units in Exhibit PAH3, that allegation is unfounded and not proved as required by the law.’
‘In the same vein Paragraph 96 of the petition averred that Agents of the 2nd and 3rd Respondents disrupted the election, votes scored were not accurately recorded and that ballot papers were torn. The Petitioners averred that video recording shall be tendered. However, the video recording was not tendered in that regard. In this respect, the presumption in Section 167(d) of the Evidence Act, 2011, that they withheld the said video recording because it would be against them if tendered, shall also apply.’]
C. NO PROOF THAT ELECTRONIC COLLATION IS REQUIRED
[‘On Petitioners’ allegation that 1st Respondent failed to collate the election result using the Electronic Collation System, the Petitioners have not been able to prove that the Electoral Act or the Guidelines made it mandatory for electronic collation system.’
‘A careful examination of the above Sections relied upon by the Petitioners shows that the Electoral Act had used the words “deliver” in Section 62(1), “transfer” in Section 60(5) and “transmitted directly” in Sections 50(2), 64(4), (5) and (6), of the Electoral Act, 2022, in stating how results of elections should be handled under those provisions. A look at the definitions of those words in the Blacks’ Law Dictionary, Sixth Edition shows that the word “transfer” is defined at page 1497 as “to convey or remove from one place, person, etc., to another;” or to “pass or hand over from one to another”; or to “specifically to change over the possession or control.” The word “transmit” on the other hand is defined by the same Law Dictionary to mean “to send or transfer from one person or place to another or to communicate.” In my view, the Electoral Act, 2022 has used the words “deliver”, “transfer” and “transmitted directly” interchangeably to describe how the results of the election shall be moved from one stage to another until the results are finally collated and declared. In all these, the Electoral Act, 2022 has not specifically provided that the results of the election shall be electronically transmitted.’]
II. Whether the 2nd Respondent was lawfully declared and returned as the winner of the Presidential election held on 25th day of February 2023, having not secured one-quarter of the valid votes cast in the Federal Capital Territory, Abuja.
RULING: IN RESPONDENT’S FAVOUR.
A. SECURING ONE QUARTER OF THE VOTES IN THE FCT IS UNNECESSARY; FCT IS NOT ABOVE THE OTHER STATES
[‘Following these well-settled guidelines, our first port of call in unlocking the argument of the Petitioners is the Preamble to the 1999 Constitution and the Directive Principles of State Policy contained therein all of which embody the principles of the Constitution. The Preamble to the 1999 Constitution loudly roclaims equality between citizens as its cornerstone among others, thus: “WE the people of the Federal Republic of Nigeria; Having firmly and solemnly resolved; AND TO PROVIDE a constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of freedom, EQUALITY and Justice, and for the purpose of consolidating the Unity of our people: DO HEREBY MAKE AND GIVE TO OURSELVES the following Constitution:” For those who are not used to reading preambles, the Constitution still in its Fundamental Objectives and Directive Principles of State Policy contained in Chapter II of the Constitution, which this Court aptly described as the road to construction’ in FRN v DINGYADI (supra), repeats this equality principle. Under its Social Objectives provision of that Chapter in Section 17 thereof, it again proclaims that: “(1) The State Social order is founded on ideals of Freedom, Equality and Justice. (2) In furtherance of the social order – (a) Every citizen shall have equality of rights, obligations and opportunities before the law; ” Equality of rights in every citizen as stated in this provision cannot by any means be read to exclude equality of the weight and value of their votes. No, it includes it. Even more so, when the issue here is the right of every such citizen to elect with their votes their President whose policies are supposed to and will affect all of them equally regardless of which part of the country they reside or live. So even stopping here, the futility and hollowness in the argument of the Petitioners that the votes of the voters in the FCT, Abuja have more weight than other voters in the country, to the extent of their votes purportedly have a veto effect on other votes, is rendered bare. That notwithstanding, let us still proceed to consider, for whatever it is worth, their interpretation of Section 134(2)(b) of the same 1999 Constitution, which incidentally centres around the word and’ in that provision.’]
B. THE FCT IS ONLY TO BE TAKEN INTO ACCOUNT IN CALCULATING 2/3 OF THR FEDERATION
[‘The point being made here is that, contrary to the position of the Petitioners, by the express provisions of Section 299 above, the provisions of the entire Constitution shall apply to the Federal Capital Territory as if it were one of the States of the Federation. This means that Section 134(2)(b) of the same Constitution, requiring a presidential candidate to poll at least one quarter of the votes cast in two-thirds of the States of the Federation in order to be returned elected, means nothing more than that the Federal Capital Territory shall be taken into account in calculating the said two-third of the States of the Federation. In other words, the FCT is no more than one of the States of the Federation for the purpose of that calculation. Nothing more than that is can be implied or inferable from Section 134(2)(b) of the Constitution.’
‘It is also my considered view that if the framers had wanted to make scoring one-quarter of votes cast in the Federal Capital Territory, Abuja, a specific requirement for the return of a Presidential candidate, they would have made that intention plain by using words that clearly separate the scoring of one-quarter of votes in the Federal Capital Territory as a distinct requirement. As expressly stated in Section 299 of the Constitution, for the purposes of fulfilling the requirements of Section 134(2)(b) of the Constitution for the return of a Presidential candidate as duly elected, the Federal Capital Territory, Abuja, is to be treated as one of the States in the calculation of two-third of the States of the Federation. Such that if the candidate polls 25% or one-quarter of the votes in two-thirds of 37 States of the Federation (FCT Abuja inclusive), the Presidential Candidate shall be deemed to have been duly elected, even if he fails to secure 25% of the votes cast in the Federal Capital Territory, Abuja, as the 2nd Respondent did.’]
III. Whether the 2nd Respondent was not disqualified under the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) to contest the Presidential election held on 25th day of February 2023, having regard to the alleged order of forfeiture arising from drug-related offence, his acquisition of the citizenship of a country other than Nigeria, and presenting a forged certificate to the 1st Respondent?
RULING: IN RESPONDENT’S FAVOUR.
A. FACTS IN RESPECT OF DISQUALIFICATION WERE NOT PLEADED
[‘I do not intend to reopen this issue, having already ruled on it while considering the preliminary objections of Respondents. I held therein that the petitioners did not plead facts in support of non-qualification or disqualification of 2nd Respondent in their petition and their efforts to remedy it through their replies to respondents’ replies were belated and of no avail. That ruling constitutes issue estoppel, binding not only on the parties but on this court, meaning, that this court cannot depart from it: see Uwemedimo v. Mobil Producing (Nig.) Unltd (2022) 2 NWLR (Pt. 1813) 53 @ 78 paragraph E-F (SC); Francis Shanu & Anor v. Afribank (Nig.) Plc (2002) LPELR-3036 (SC) p. 25 paragraph D-E, (2002) 17 NWLR (Pt. 795) 185; Fadiora v. Gbadebo (1978) 3 S.C. 219; Lawal v. Dawodu & Ors. (1972) 1 ALL N.L.R. (Pt. 2) 270; Cardoso v. Daniel (1986) LPELR-830 (SC) p. 27-28; Ladega v. Durosinmi (1978) 3 SC 82. This issue is therefore discountenanced.’]
IV. Whether 2nd Respondent was duly elected by majority of the lawful votes cast in the election and 1st Respondent was right in returning him as duly elected.
RULING: IN RESPONDENT’S FAVOUR.
A. NO EVIDENCE WAS PLACED BEFORE THE COURT
[‘The table referred to by the Petitioners is the table of results declared by the 1st Respondent. There is no other set of results placed before this court by the Petitioners to form the basis of our finding of fact as to whether the declared result is wrong or not. Success or failure in an election depends on figures, which is in turn dependent on votes garnered by each candidate. So, where the complaint in an election petition is that the candidate returned did not poll majority or highest votes in the election to be returned, as contended here by the petitioners, not only must the figures disputed be pleaded, the figures or votes the petitioner perceives as the correct figures of the election ought to and must also be pleaded. That is not only logical, support for it can be found in several decisions, among them NADABO V. DABAI (2011) 7 NWLR (Pt. 1254) 155 @ 177 where Okoro, J.C.A., as he then was, said: “When a petitioner is alleging that the respondent was not elected by majority of lawful votes, he ought to plead and prove the votes cast at the various polling stations, the votes illegally credited to the winner’ and the votes which ought to have been deducted from the supposed winner, in order to see if it will affect the result of the election. Where this is not done, it will be difficult for the court to address the issue. See Awolowo v. Shagari (1979) 6-9 S.C 51.” (Italics mine) See also Ojo v. Esohe & 2 Ors (1999) 5 NWLR (Pt. 603) 444 @ 450-451 (per Tabai, J.C.A. as he then was).’
‘From the foregoing consideration, it is very clear that there was no credible evidence by the Petitioners to prove the allegations of corrupt practices. Under this issue raised, the Petitioners were asking if the 1st Respondent was not wrong in returning the 2nd Respondent when he was not duly elected by majority of the lawful votes cast in the election. From the facts placed before the Court, the 1st Respondent declared the results of the election by which the 2nd Respondent was returned. Section 134(2) of the 1999 Constitution talks of the highest number of votes cast at the election if the contest was among more than two candidates, as in the instant case, not majority of votes cast as propounded by the Petitioners. The 1st Respondent was therefore right from the results declared by her, in the absence of any rival or alternative result placed before this Court by the Petitioners, that the 2nd Respondent who scored 8,794,726 votes, as against 6,984,520 votes scored by the Petitioners in the Election, scored the highest number of lawful votes cast in the election.’]
‘Having resolved all the four issues against the Petitioners, I find that the Petitioners have not successfully proved any of the grounds as laid out in Paragraph 16 of their Petition. It is my conclusion that this Petition also lacks merit.’
➥ FURTHER DICTA:
⦿ WHOEVER ALLEGATION IS MADE AGAINST SHOULD BE JOINED IN AN ELECTION PETITION, NOT JUST THE CONTESTANTS
I am however of the opinion that the second complaint of 1st respondent against paragraph 129 of the petition, that it also deserves to be struck out for petitioners’ failure to join Hon. Adejoh, Chairman of Olamaboro L.G.A. of Kogi State accused by them of having led thugs at gun point to force Electoral officers in named polling units in Olamaboro L.G.A. of Kogi State to declare concluded elections in the said units cancelled, is well made. The petitioners’ response that not only was no relief claimed by them against Hon. Adejoh, he did not even participate’ in the election neither was he returned so he is not a person contemplated by section 133 of the Electoral Act 2022 to be joined to an election petition, is not a valid response. Section of 133 of the Electoral Act 2022 only deals with the issue of which contestant of an election ought to be joined in an election petition by a co-contestant. It has nothing to do with the issue of joining of third parties against whom allegations of electoral infraction are made by petitioners as in this case. Such persons must be joined to the petition if the court is not to be exposed to the risk of infringing their fundamental right to fair hearing guaranteed by the Constitution. It is also of no moment that no relief was claimed against such persons in the petition; what is important is that allegations of electoral malpractice, which will require the court to make findings, including condemnation of their alleged conduct where necessary, are made in the petition. Support for that position can be found in NWANKWO V. YAR’ADUA (2010) 12 NWLR (Pt. 1209) 518 at 583 where Muntaka-Coomassie, J.S.C., after reproducing the provisions of the then newly enacted section 144(2) of the Electoral Act 2006 (in pari materia with section 133(2) of the Electoral Act 2022) and confirming that that provision had done away with the old regime of the Electoral Act 2002 that required petitioners to join all relevant Electoral Officers of INEC that conducted an impugned election, in addition to INEC itself, spoke thus at page 583: “Unless the conduct of a party who is not an agent of the Commission is in question, it will then be necessary to join such party as a necessary party to the petition in order to afford such party a fair hearing.” (Italics mine) As regards the consequence of failure to join such necessary parties on the petition itself, His Lordship again said as follows: “However, where such a party is not made a party, it will not result into the whole petition being struck out, but the particular allegation against such party is liable to be struck out.” That is the fate of paragraph 129 of the petition where allegations of electoral malpractice were made by the Petitioners against Hon. Adejoh yet he was not cited in the petition. Incidentally, this is also one of the main reasons the Supreme Court gave in dismissing the appeal of the petitioners in the Ondo State Governorship case of Eyitayo Jegede & Another v. I.N.E.C. & Ors (2021) LPELR-55481 (SC) where allegations were made by the Petitioners in that case against the then National Caretaker Committee Chairman of the present 3rd Respondent, APC, Governor Mai Mala Buni of Yobe State, yet he was not joined to the petition by the Petitioners. — H.S. Tsammani, JCA.
⦿ MAIN PURPOSE OF PLEADINGS – REASON FOR NON-QUALIFICATION SHOULD BE STATED AND PARTICULARISED
The main purpose of pleadings as further fortified by Paragraph 4(1)(b) of the First Schedule of the Electoral Act 2022, I repeat, is to properly and clearly inform the adverse party of the case he is coming to meet, so that he can respond appropriately to it. That is fair hearing. That requirement of the law does not permit parties to keep their cards face-down as petitioners did in paragraph 146 of their petition when they simply averred, generally, that 2nd Respondent was not qualified to contest the 25th February 2023 Presidential election, without revealing in what form he was not qualified or disqualified for the election. That Paragraph of the petition falls fall far short of the requirements of Paragraph 4(1)(b) of the First Schedule of the Electoral Act 2022 and so liable to be struck out and must be struck out. — H.S. Tsammani, JCA.
⦿ BELONGING TO SAME POLITICAL PARTY IS NOT PRIVITY THAT CAN BAR SUBSEQUENT SUIT
It necessarily has to be so because, except where a person is shown to be privy of another as recognised by law, no man can be punished for the actions or sins of another. That is the crux of the issue here. It is whether the Petitioners, Alhaji Abubakar Atiku and his Political Party, the Peoples’ Democratic Party, can be properly described as privies of the Governments of Adamawa, Akwa Ibom, Bayelsa, Delta, Edo and Sokoto States who undisputedly instituted Suit No SC/CV/354/2023 against the Attorney General of the Federation before the Supreme Court of Nigeria. That question can only get a negative response, for the Government of a State, regardless of the political party platform on which its Executive Governor is or was elected, represents all shades of opinion in the State, including even those who may not belong to any political party at all. In fact, a State Government is not even bound nor obliged to take instructions from the political party of the Governor. Interestingly, our Law Reports are also replete with cases where State Governments elected on the same political party platform with the Federal Government have repeatedly sued the Federal Government at the Supreme Court. A good example is the recent New Currency Change case that was instituted by the Attorneys General of Kogi, Kaduna and Zamfara States against the Federal Government, even as both parties were APC Governments. In that situation, one wonders where counsel would place this proposition of privity by affinity. — H.S. Tsammani, JCA.
⦿ UNKNOWN PERSONS CANNOT BE JOINED IN ELECTORAL PETITION
Unnamed persons cannot be joined to an election petition like it is sometimes done in trespass cases. See Obasanjo v. Yusuf (2004) LPELR-2151 (SC) p.18 -19 where a similar argument was rejected out of hand by Kutigi and Pats-Acholonu, JJ.S.C., thus: ‘It is impossible to drag unknown touts, police, army and hordes of others to court and join them. That would be bizarre.’ — H.S. Tsammani, JCA.
⦿ FAILURE TO JOIN A PARTICULAR PARTY WILL NOT WARRANT STRIKING OUT OF ENTIRE PETITION
The other argument of note of 2nd Respondent in this application is the one of failure of petitioners to join Friday Adejoh and Governor Yahaya Bello of Kogi State and its effect on the petition. We have already struck out the relevant paragraphs of the petition where allegations of malpractice were made against the two men. We abide by that decision. We shall simply add that we do not agree with 2nd respondent’s argument that the entire petition merits dismissal for non-joinder of those two men. The proper sanction, in the circumstances of this case as we have already pointed out citing Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 @ 583 paras G-H. (SC), is to strike out the paragraphs of the petition where those allegations were made. That order, we also further add, and contrary to the argument of 2nd Respondent, will not affect the paragraphs where allegations were made against unnamed thugs. — H.S. Tsammani, JCA.
⦿ MEMBERS OF THE INNER BAR HAVE GREATER RESPONSIBILITIES TO THE COURT
That obligation even becomes more pronounced when it is realised that a substantial number of 1st Respondent’s counsel are members of the inner bar who even have greater responsibilities to the court by virtue of their ranking. — H.S. Tsammani, JCA.
⦿ A REPLY TO STATEMENT OF DEFENCE MAY NOT BE NEEDED
In fact, the settled position of the law is that except in some well-defined situations, a Reply to Statement of defence is not even permitted where no counterclaim is served. This is so because there is in law an implied joinder of issues on any fact raised in the statement of defence and any averment contained therein is deemed denied: see Bakare & Anor v. Ibrahim (1973) 6 S.C. 205, Akeredolu v. Akinremi (1989) 3 NWLR (PT 108) 164 @ 172; Egesimba v. Onuzuruike (2002) FWLR (PT 128) @ 1407; Spasco v. Alraine (1995) 9 SCNJ 288 @ 301, Ishola v. S.G.B.N. (1997) 2 NWLR (PT 488) 405; Obot v. C.B.N (1994) 8 NWLR (PT 310) 140 @ 159 … It is also not the law, as erroneously argued by petitioner’s counsel, that failure to reply to facts averred by 3rd Respondent in his Reply to the petition would mean admission of those facts. Failure to deny averments contained in a statement of defence does not imply admission like it does with failure to deny averments in a statement of claim: see Egesimba’s case (Ayoola, J.S.C.) at pages 14 to 15 of LPELR). — H.S. Tsammani, JCA.
⦿ THE IMPRECISENESS IN PLEADING NON-QUALIFICATION WITHOUT SUFFICIENT PARTICULARS
It must be noted, too, that under Section 131 of the 1999 Constitution of this country, there are as many as four different qualifications a person must possess before he can contest presidential election and another 10 different grounds that can disqualify such a candidate who has all the four qualifications of section 131. Therefore, an assertion that merely says that a person is not qualified to contest election by reason of non qualification, will leave not just the person so assailed but every other person involved, including the court, at a loss as to what the pleader has in mind. In fact, to allow such pleading will amount to upsetting the very essence of filing pleadings in a case, which is to give the adversary and the court a clear notice of the pleader’s case a point further fortified in Paragraph 16(1)(a) of the First Schedule to the Electoral Act 2022. — H.S. Tsammani, JCA.
⦿ THE PROVISIONS OF THE FEDERAL HIGH COURT CIVIL PROCEDURE RULES ARE SUBJECT TO THE EXPRESS PROVISIONS OF THE ELECTORAL ACT
Permit me to still say a word or two of my own on Petitioners’ contention that Order 3 Rules 2 and 3 of the Federal High Court (Civil Procedure) Rules 2019 permitting parties to file witness deposition of a subpoenaed witness even after commencement of their action applies automatically to election petitions by virtue of Paragraph 54 of the First Schedule to the Electoral Act 2022, so the Witnesses statement of their witnesses filed by them after hearing of the petition had long commenced were in order. In the first place, Paragraph 54 of the First Schedule to the Electoral Act 2022 simply states as follows: Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action. (Italics ours) This provision clearly makes application of the Civil Procedure Rules of the Federal High Court in election petitions subject to the express provisions of the Electoral Act.” It is not the other way round of modifying provisions of the Act to agree with the Rules of the Federal High Court as suggested by Petitioners’ counsel. That much, Paragraph 54 further clarifies by stating that even where the Federal High Court Rules are considered applicable, they “shall [only] apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act.” What all that means is that, where there is express provision in the Act on a particular situation, as it clearly is in Paragraph 4(5)(b) of the First Schedule to the Electoral Act 2022 that says the election petition shall be accompanied by Written statements on oath of the witnesses,” the provisions of the Federal High Court (Civil Procedure) Rules will not apply. — H.S. Tsammani, JCA.
⦿ HEARSAY DOES NOT ARISE FROM SECTION 84 EVIDENCE ACT 2011
The authentication required by Section 84 of the Evidence Act, in the circumstances the video clips in issue were made, is statements assuring the court that they are in the exact same state they were in the internet from where Dr Ter (P.W.19) downloaded them to his laptop computer and subsequently to his flash drives before bringing them to this court. That much is evident in the contents of Dr Ter’s Certificate in Exhibit PAF 4B above. For the same reason, the argument that Dr Ter is not in a position to answer questions on the said clips and so his evidence on them is hearsay is also non sequitur. — H.S. Tsammani, JCA.
⦿ DUMPING OF DOCUMENTS ONLY GOES TO WEIGHT TO BE ATTACHED
The simple and straightforward answer to this argument is that the issue of dumping of documents on court, which expression in any case suggests that the documents so dumped are already in evidence before the court, only goes to the weight to be attached to the documents by the court. On this reasoning, this ground of the objection is rejected and overruled. — H.S. Tsammani, JCA.
⦿ DOCUMENTS MADE BY INTERESTED PARTIES DURING THE PENDENCY OF THE SUIT ARE INADMISSIBLE
Coming to the issue of whether the documents in issue were either made during the pendency of this proceeding and/or in anticipation of it and by interested persons, I must say that, aside our earlier ruling, which I hereby affirm, that the impeached Exhibits PAH1, PAH2, PAH3 and PAH4 of Mr. Samuel Oduntan (P.W.21) and PAR1 (A, B, C, D, E and F) of P.W. 26 are even incompetent by reason of petitioners’ failure to accompany their petition with P.W. 21 and 26’s witness statements in line with Paragraph 4(5)(b) of the First Schedule of the Electoral Act, it is also clear to me that 3rd Respondent’s argument that Exhibits PAH1, PAH2, PAH3 and PAH4 of and PAR1 (A, B, C, D, E and F) were not only made by P.W. 21 and 26 during the pendency of this petition but P.W.21 in particular even admitted that he was well remunerated by the petitioners for his work. Their Reports are therefore inadmissible in evidence by virtue of Section 83(3) of the Evidence Act 2011. A document made in anticipation of litigation or during its pendency by persons interested is rendered inadmissible by section 83(3) of the Evidence Act 2011. See Anagbado v. Faruk (2019) 1 NWLR (Pt. 1653) 292 @ 312 (SC); C.P.C. v. Ombugadu (2013) ALL FWLR (Pt. 706) 406 @ 472-473 (SC); Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519)87 @ 141 (SC); Oyetola & Anor. v. INEC & Ors (Unreported judgment of the Supreme Court of Nigeria of 9/5/2023 in Suit No SC/CV/508/2023). — H.S. Tsammani, JCA.
⦿ THE PEPT CONSIDERED EVIDENCE DESPITE DISCARDING THEM
We, however, wish to state that, despite our conclusions above on the objections raised by Respondents to documents tendered by the petitioners, I am still minded to the evaluate evidence adduced and consider the merits of the petition. The only evidence I shall not revisit are Exhibits PBD, PBD1A, PBD1B, PBD1C, PBD1D, PBD1A, PBD2A, PBD3, PBD4, PBE1, PBE2, PBE3, PBE4, PBE5, PBE6, PBF1, PBF2, PBF3 and PBF4 relating to 2nd Respondent’s alleged non-qualification that were tendered by P.W.27, Mr. Mike Enahoro-Ebah, the said documents in our view being bereft of pleadings to sustain them as elaborately stated earlier in this judgment. — H.S. Tsammani, JCA.
⦿ PROVING NON-COMPLIANCE IN AN ELECTION
Any Petitioner who complains that the result as declared is either wrong or not in compliance with the Electoral Act has the onus of proving the contrary: see NYESOM V. PETERSIDE (2016) LPELR-40036 (SC). This case was relied upon by the Supreme Court in the case of ANDREW & ANOR V. INEC (2017) LPELR 48518 (SC) where the Supreme Court held per Onnoghen, J.S.C. (as he then was) as follows: “…Secondly, one of the main planks on which the petition is based is non-compliance with the provisions of the Electoral Act, 2010 (as amended). For one to succeed on that ground, it is now settled law that where a petitioner alleges non compliance with the provisions of the Electoral Act, he has the onus of presenting credible evidence from eye witnesses at the various polling units who can testify directly in proof of the alleged non-compliance See Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 315 316: Buhari v. INEC (2008) 18 NWLR (Pt.1120) 246 at 391 392: Okereke v. Umahi (2016) 11 NWLR (Pt.1524) 438 at 473. Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452, etc.” — H.S. Tsammani, JCA.
⦿ ELECTORAL RESULT DECLARED BY INEC ENJOY PRESUMPTION OF REGULARITY
Primarily, the law is well settled that the results declared by INEC (1st Respondent) in an election enjoy a presumption of regularity. In other words, they are prima facie correct. See Section 168(1) of the Evidence Act 2011, recently applied by the Supreme Court in ATUMA V. APC & ORS (2023) LPELR-60352 (SC) where JAURO, JSC held at PP 40-41 as follows: “By virtue of Section 168(1) of the Evidence Act, 2011, presumption of regularity inures in favour of judicial or official acts, including those carried out by INEC. The exact words of the subsection are thus: “When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” See P.D.P. V.I.N.E.C. (2022) 18 NWLR (PT. 1863) 653, UDOM V. UMANA (NO. 1)(2016) 12 NWLR (PT. 1526) 179. Fortunately for the Appellant and 1st Respondent, it is only a presumption, which implies that it is rebuttable. Any person who questions the validity of an act in favour of which there is a presumption of regularity, has a duty to rebut the presumption with cogent and credible evidence. A flimsy or half-hearted rebuttal will not suffice.” — H.S. Tsammani, JCA.
⦿ BURDEN OF PROOF WHERE PARTY ALLEGES THE NEGATIVE
DASHE & ORS V DURVEN & ORS (2019) LPELR-48887 where my learned brother Ugo, JCA held: “While it is true that the burden of proof is generally on the person who substantially asserts the positive of an issue, and not on the person who makes a negative assertion, there is a caveat to that principle to the effect that where a negative assertion forms an essential part of a plaintiff’s case (as it evidently is in the case of the appellants) the burden of proof of such allegation rests on him. The law on this point was lucidly stated by Bowen L.J. in Abrath v. N.E. Railway. Co 11 QBD 440 at 457 when he said that: “Now in an action for malicious prosecution, the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that the Judge can see no reasonable and probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that, when a negative is made out, the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of a plaintiff’s case, the proof of the assertion still rests upon the plaintiff. The terms’ negative and affirmative’ are after all, relative, and not absolute.” ?See also Phipson on Evidence, 15th Edition, Paragraph 4.03 at page 56; The Article Burden and Standard of Proof, by Justice Niki Tobi in Chief Afe Babalola’s Law & Practice of Evidence in Nigeria, and Muraina & Ors v. Omolade & Ors (1968) 359 @ 362. See also Sections 131, ?132 and 133 of the Evidence Act 2010 stating that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist; that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given, and that in civil cases, the burden of first proving existence or non-existence offact lies is on the party against whom judgment would be given if no evidence were produced on either side.” — H.S. Tsammani, JCA.
⦿ PETITIONER HAS BURDEN TO PROVE NON-COMPLIANCE WITH THE ELECTORAL ACT
In the instant case, it is fundamental to point out that, from the pleadings, the allegation of non-compliance is generated by the Petitioners. Under Sections 134(1) and 135 of the Electoral Act, the level of proof required for the success of the Petition is doubled. There must be proof of non-compliance and the further proof that the non compliance affected substantially the result of the election. In the face of such an allegation of non-compliance, the court is enjoined by the law not to invalidate an election if it appears that the election was conducted substantially in accordance with the principles of the Electoral Act. All said and done, the Petitioners have the primary burden of proving that there was non-compliance and that the non-compliance affects substantially the result of the election before the burden can shift to the Respondents to establish that there was no substantial non-compliance with the Electoral Act in the conduct of the election. — H.S. Tsammani, JCA.
⦿ GROUNDS UPON WHICH AN ELECTION CAN BE QUESTIONED
The Electoral Act, 2022 in an explicit manner, has laid out clearly grounds upon which an election can be questioned in Section 134 thereof. Then there is Section 135 of the said Act which looks like a proviso to Section 134. For a proper appreciation of the intendment of the law, Section 134 and 135 of the Electoral Act must be considered together. — H.S. Tsammani, JCA.
⦿ HISTORY OF THE EVIDENTIAL BURDEN OF NON-COMPLIANCE IN OUR ELECTORAL LAWS
This ground of non-compliance to the Electoral Act has been in all our Electoral Laws even from when we had parliamentary system of government. The Courts have over the years shed a lot of light on the requirement of the law in proving the allegation of non-compliance. A short chronicle of the decisions of our Courts will throw more light on the evidential burden of proving non-compliance. In BASSEY V. YOUNG (1963) LPELR-15465 (SC), BRETT JSC in the then Federal Supreme Court held as follows: “…Akinfosile v. ljose (1960) 5 F.S.C. 192, where the Court held that a petitioner who alleges in his petition a particular non compliance and avers in his prayer that the non-compliance was substantial must so satisfy the Court. If there should be any inconsistency between the two decisions, it is the decision of this Court that binds us, and it would appear to me that we are bound by the authority of Akinfosile v. ljose to hold that the petitioner must show both that irregularities took place and that they might have affected the result of the election.” In AWOLOWO V. SHAGARI & ORS (1979) LPELR-653 (SC), the Supreme Court of Nigeria in the 1979 election contest held per Obaseki JSC as follows: “Once a petitioner alleges a particular non-compliance and averred in his prayer that it was substantial it is his duty so to satisfy the Court or Tribunal having cognisance of the question. See AKINFOSILE v. IJOSE 5 FSC 92 AT 99 (a case dealing with Regulation 7 of the Elections (House of Representatives) Regulations 1958 which is in pari materia with Section 111 of the Electoral Decree 1977 as ………..to vitiate an election, the non-compliance must be proved to have affected the results of the election. See SORUNKE v. ODEBUNMI (1960) 5 FSC AT PP 177 AND 178, where Ademola, C.J.N, delivering the judgment of the Federal Supreme Court said: “Finally, in considering ….. whether the election was void under the Ballot Act, Lord Coleridge said at page 751 of the judgment: If this proposition be closely examined it will be found to be equivalent to this, that the non-observance of the rules or forms which is to render the election invalid, must be so great as to amount to a conducting of the election in a manner contrary to the principle of an election by ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or in other words, the result of the election. When Lord Coleridge refers to a majority of voters, he cannot mean to say that non-compliance may be overlooked unless it affects over half of the votes cast. He referred to a non compliance, which “affected the majority of voters, or in other words, the result of the election.” It cannot be doubted that here Lord Coleridge means that those electors wishing to vote who formed a majority in favour of a particular candidate must have been prevented from casting a majority of votes in his favour with effect. This does not require that all their votes must have been disallowed; it will be sufficient if enough of their votes are disallowed to give another candidate a majority of valid votes.” See also the cases of BUHARI & ANOR V. OBASANJO & ORS (2005) LPELR-815 (SC) and CPC V. INEC & ORS (2011) LPELR-8257 (SC). — H.S. Tsammani, JCA.
⦿ ONLY POLLING UNIT AGENT CAN GIVE TESTIMONY OF WHAT TRANSPIRED IN THE POLLING UNIT
In PDP & ANOR V INEC & ORS (2019) LPELR-48101(CA), this Court Per Agim, JCA (as he then was) held that it is only a Polling Unit agent or a person who was present at a Polling Unit during polls that can give admissible evidence of what transpired during the poll in that unit. See also GOYOL & ANOR V. INEC & ORS (2012) 11 NWLR (PT. 1311) 207, 218 and BUHARI V. INEC & ORS (PT.1120) 246, 424 … Under our law, specifically in Section 43 of the Electoral Act, 2022, Polling Agents are permitted to be appointed by Political Parties for each Polling Unit and collation centre. The wisdom in this is for each of the political parties involved in an election to be represented by its own agents. The duties of an agent are to represent the interest of his/her principal. Having regard to the fact that no mortal man can be in all the places at the same time, the law allows political parties to have their agents at all polling units and collation centres. It is therefore not anticipated by the law for any political party to appoint an octopus agent with his tentacles in all the polling units and collation centres. This is humanly not practicable. When, therefore, evidence is required to prove what happened in any polling unit or a collation centre, it is only the agent who witnessed the anomaly or the malfeasance that can legally and credibly testify. See BUHARI V. OBASANJO (SUPRA); OKE & ANOR V. MIMIKO (SUPRA) AND ANDREW V. PDP (SUPRA). — H.S. Tsammani, JCA.
⦿ PARTIES AND THE COURT ARE BOUND BY THE PLEADINGS AND ISSUES JOINED
It is settled law that issues for trial by the Court are joined in the pleadings and that parties and indeed the Court are bound by the pleadings of the parties. The Petitioners’ case stands to collapse if no evidence is called on the issue. See ORUWARI V. OSLER (2012) LPELR-19764 (SC) and KUBOR & ANOR V. DICKSON & ORS (2012) LPELR-9817 (SC). — H.S. Tsammani, JCA.
⦿ THE PRIMARY PURPOSE OF CROSS-EXAMINATION
It is trite in our law that cross-examination is a formidable tool for the demolition of the case of the opponent. The purpose of cross examination is to discredit the witness called by the adversary. In the recent case of PDP & Ors V. Muhammad & Anor (supra), the Supreme Court held that the primary object of Cross-examination is to contradict the evidence of the opponent’s witness in order to weaken his case. It is best resorted to in order to test the veracity of the witness. — H.S. Tsammani, JCA.
⦿ DESPITE ELECTIONS BEING SUI GENERIS, THEY ARE GOVERNED BY THE EVIDENCE ACT
It is important to note here that although Election petitions are sui generis, they are governed by the Evidence Act. See BUHARI V. OBASANJO (2005) 2 NWLR (PT. 910) 241; APC V PDP & ORS (2015) LPELR-24587(SC). — H.S. Tsammani, JCA.
⦿ PROCESSES THAT MUST BE FOLLOWED FOR A SUCCESSFUL ELECTION
Let me underline here that in the conduct of an election, certain processes must have been walked over to conclude and confirm that the election was conclusive. The steps outlined by the law must not be broken. These steps are: (a) Accreditation (b) Conduct of poils (c) Counting of votes (d) Collation and announcement of results (e) Signing of result forms (f) Publication of results. — H.S. Tsammani, JCA.
⦿ CORRUPT PRACTICES ARE TO BE PROVED BEYOND REASONABLE DOUBT
In the instant case, the Petitioners have grounds of non-compliance with the Electoral Act 2022 and allegation of corrupt practices. Section 134(1) (b) refers to the ground of corrupt practices or non-compliance. If the ground pursued in any petition is simply non-compliance with the Act and there is no tincture of allegation of crime, the proof required would be on the balance of probabilities. But the standard of proof in any ground that is primarily on corrupt practices would require proof beyond reasonable doubt, that allegation being criminal in nature. — H.S. Tsammani, JCA.
⦿ LITIGATION IS FOUGHT ON PLEADINGS
It is trite that litigation, particularly election dispute litigation, is fought on pleadings. Parties swim or sink with their pleadings. In the case of ANYAFULU & ORS V. MEKA & ORS (2014) LPELR 22336 (SC), the Supreme Court Per Kekere Ekun, JSC held that: “Litigation is fought on pleadings. They are the pillars upon which a party’s case is founded. Not only do they give the other side notice of the case they are to meet at the trial, they also define the parameters of the case. In other words, parties are bound by their pleadings. Any evidence led on facts not pleaded goes to no issue while any pleadings in respect of which no evidence is led are deemed abandoned. In effect, where the pleadings are deficient no matter how cogent the evidence led, the case would fail. See: Nwokorobia Vs Nwogu (2009) 10 NWLR (1150) 553; Shell B. P. Vs. Abedi (1974) 1 SC 23; Ebosie Vs. Phil Ebosie (1976) 7 SC 119; George Vs Dominion Flour Mill Ltd. (1963) 1 ALL NLR 71.” See also IFEANYICHUKWU OSONDU CO. LTD & ANOR V. AKHIGBE (1999) LPELR (SC). Those pleadings in Paragraphs 41-42 of the Petition having been abandoned are discountenanced. — H.S. Tsammani, JCA.
⦿ INTERPRETATION OF CONSTITUTION IS DIFFERENT FROM INTERPRETATION OF STATUTES
It is pertinent to state that unlike interpretation of statutes, the interpretation of Constitution has its own guiding principles. In FRN V NGANJIWA, which was cited by the Petitioners as SC/794/2019, but which is reported as FRN v NGANJIWA (2022) LPELR-58066(SC), the Supreme Court has succinctly reviewed decided cases on interpretation of the Constitution and outlined these guiding principles: ) In interpreting the Constitution, which is the supreme law of the land, mere technical rules of interpretation of statutes should be avoided, so as not to defeat the principles of government enshrined therein. Hence a broader interpretation should be preferred, unless there is something in the text or in the rest of the Constitution to indicate that a narrower interpretation will best carry out the objects and purpose of the Constitution. (b) All Sections of the Constitution are to be construed together and not in isolation. (c) Where the words are clear and unambiguous, a literal interpretation will be applied, thus according the words their plain and grammatical meaning. (d) Where there is ambiguity in any Section, a holistic interpretation would be resorted to in order to arrive at the intention of its framers. (e) Since the draftsperson is not known to be extravagant with words or provisions, every section should be construed in such a manner as not to render other sections redundant or superfluous. (f) If the words are ambiguous, the law maker’s intention must be sought, first, in the Constitution itself, then in other legislation and contemporary circumstances and by resort to the mischief rule. (g) The proper approach to the construction of the Constitution should be one of liberalism and it is improper to construe any of the provisions of the Constitution as to defeat the obvious ends which the Constitution was designed to achieve. See also on this: NAFIU RABIU V STATE (1980) 8-11 S.C. 130 at 148; A.G. BENDEL STATE V A.G. FEDERATION & ORS (1981) N.S.C.C. 314 at 372 – 373; BUHARI v OBASANJO (2005) 13 NWLR (Pt. 941) 1 at 281; SAVANNAH BANK LTD v AJILO (1989) 1 NWLR (Pt. 97) 305 at 326; and A.G., ABIA STATE V A.G. FEDERATION (2005) All FWLR (Pt. 275) 414 at 450, which were also referred to by the Apex Court. — H.S. Tsammani, JCA.
⦿ DEFINITION OF SEMICOLON
It is noteworthy that the punctuation mark employed by the framers immediately after the part of that provision ending with “Federation” emphasized by me, is a semicolon whose function in a sentence is to separate independent clauses of a compound sentence: See Meriam Webster’s Online Dictionary which defines semicolon’ as “a punctuation mark used chiefly in a coordinating function between major sentence elements (such as independent clauses of a compound sentence).” WIKIPEDIA also explains its use thus: “In the English Language, a semicolon is most commonly used to link two independent clauses that are closely related in thought, such as when restating the preceding idea with a different expression.” — H.S. Tsammani, JCA.
⦿ PARTY MUST ENDEAVOUR TO LINK DOCUMENTS TO SPECIFIC PLEADING TO AVOID DUMPING DOCUMENTS
Surprisingly the documents were dumped on the Court without any witness linking them up documents with the specific complaints of non compliance. It is settled law that despite the tendering of exhibits in proof of a Petition/case, the onus of proving the case pleaded and for which the documents were tendered in evidence, lies on the Petitioner. In the instant Petition, a lot of documents were tendered from the Bar. When a party decides to rely on documents to prove his case, there must be a link between the documents and the specific areas of the Petition. The party must relate each document to the specific areas of his case for which the documents were tendered. Failure to link the documents is fatal and catastrophic as it is in this case. The Supreme Court in the recent case of TUMBIDO V. INEC & ORS. (2023) LPELR-60004 (SC) held Per Jauro, JSC (at P.43, Paras C-F) as follows: “The practice of dumping documents on the Court without speaking to them has been deprecated by this Court on numerous occasions. No Court is entitled to conduct inquisitorial investigations into the contents of a document or purport thereof in its chambers. The Appellant ought to have called a witness to speak to the photographs and video recording before the Court. See MAKINDE V. ADEKOLA (2022) 9 NWLR (PT. 1834) 13; MAKU V. AL-MAKURA (2016) 5 NWLR (PT. 1505) 201; A.C.N. V. NYAKO (2015) 18 NWLR (PT. 1491) 352.” — H.S. Tsammani, JCA.
⦿ FOR THE PETITIONERS
Chief Chris Uche SAN.
⦿ FOR THE RESPONDENT
Mr. A.B Mahmoud, SAN.
Wole Olanipekun SAN.
Prince L.O Fagbemi SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Paragraph 4(1) of the First Schedule of the Electoral Act 2022 (as amended) states that: ‘4(1) An election petition under the Act shall: state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the Petitioners.’
Paragraph 15 of the First Schedule of the Electoral Act 2022 stating that: ‘When a petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the election or return shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.’
➥ REFERENCED (CASE)
⦿ ESSENCE OF PLEADINGS
Nnaemeka-Agu, JSC, in ATANDA V. AJANI (1989) 3 NWLR (Pt. 111) 511 @ 546 put that point across most forcefully when he said that: “It appears to me that the rule which required every fact upon which a party intends to rely at the hearing to be pleaded goes to the fundamentals ofjustice. For no one can defend the unknown. If one has to defend or counter a fact made by his adversary, the one must have due notice ofthat fact to enable him prepare for his defence. That is the very essence of pleading. As it goes to the very root of the rule of audi alteram partem one of the twin pillars of justice — it would be a misconception to describe it as mere technicality or irregularity. It is a matter which cannot, therefore, be waived. Indeed, by a long line of decided cases, it has been long settled that any evidence on a fact that ought to have been pleaded, but is not, goes to no issue at all at the trial and ought to be disregarded.”
⦿ THE JUDGE MUST BE OBEDIENT TO THE WILL OF PARLIAMENT
Lord Denning, M.R., in DUPORT STEELS LTD v. SIRS (1980) 1 ALL E.R. 529, where it was said by Lord Scarman in his Speech at p. 551 (on an appeal from Lord Denning’s Lead judgment in that case) that: “But in the field of statute law the Judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes and unmakes the law, the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing constructions is possible. But our law requires that the judge choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result is unjust but inevitable, the judge may say so and invite Parliament to reconsider the provision. But he must not deny the statute. Unpalatable statute may not be disregarded or rejected, merely because it is unpalatable. Only if a just result can be achieved without violating the legislative purpose of the statute may the judge select the construction which best suits his idea of what justice requires.”
⦿ WITNESS DEPOSITION NOT FILED BY A WITNESS AS AT THE TIME OF FILING THE PETITION WILL NOT BE COUNTENANCED
Peoples’ Democratic Party v. Chibuzor Okogbuo & Ors (2019) LPELR-48989 (CA) at p.24-25, when it said (per Orji-Abadua, JCA) that: “What is deducible is that Witness Deposition filed by a witness not listed in the Petition cannot be countenanced by the Court or Tribunal after the expiration of the time prescribed for the filing of the Petition. It was stressed by this court therein that to allow a Petitioner to file an additional witness statement at any stage of the Election proceedings would destroy the regulated environment that must exist to ensure that both parties to the petition are expeditiously heard and the Petition determined within 180 days from the date of the Petition. This court observed that such an indulgence would remove the control of the pace of the proceedings from the control of the Constitution, the Electoral Act and the First Schedule to the Electoral Act and leave it at the whim of the parties and open the floodgate for all kinds of abuses of the judicial process.”
⦿ THE WHOLE CONCEPT OF SUI GENERIS NATURE OF ELECTION PETITION
Tobi, J.S.C., in his lead judgment in Buhari v, INEC (2008) LPELR-814 (SC) p. 97 paragraph A-B: “The whole concept of Election Petition being sui generis, in my view, is to project the peculiarity of the reliefs sought, the time element and peculiar procedure adopted for the hearing of the petition and all that.”
⦿ HEARSAY EVIDENCE NOT ADMISSIBLE
In JAMB V. ORJI (2008) 2 NWLR (PT. 1072) 552, the Court held: “What then is hearsay? Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was made.” See also UTTEH V. STATE (1992) LPELR6239; UKUT V. STATE (1995) LPELR-3357(SC); KASA V. STATE (1994) LPELR-1671 (SC), BUHARI V. OBASANJO (2005) LPELR-815 (SC).
⦿ DOCUMENT AMENDED DOES NOT MEAN ILLEGAL IPSO FACTO
Waziri Ibrahim v. Shagari (2007) 3 EPR 99 @ 131 where it was again said by the apex court that: “An amended document by itself does not speak of motive behind the amendment. Without more, an altered or amended document is as genuine as an unamended one. Therefore, the admission of Exhibits C to V, the returns from States from which Exhibits B and B1 were collated without any evidence to add a sting to the innocent amendment appearing on some of them offers no help to the case of the appellant. I find myself therefore unable to accept the submission of the learned counsel for the appellant that because returning officers amended and altered the returns in exhibits C to V from 15 States, that fact ipso facto means that the returning officers have not complied with the Sections 65(5), 66, 70 and 119 of the Electoral Act 1982. There must be evidence of indictment or of immoral, unlawful and illegal motive.”
➥ REFERENCED (OTHERS)