The burden of proof in election petition cases, just like in other civil cases is on the person questioning the results of an election to prove his claim. However it shifts from side to side and at each time in the case, rests on the party whose case would fail if no further evidence is led in the case. See AWUSE V. ODILI (2004) 8 NWLR (Pt. 876).
It is settled law that a petitioner challenging an election result on the ground of falsity is required to plead inter alia two sets of results, one in respect of the false result and the other relating to the result the petitioner considers to be genuine and correct. See AUDU V. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456 at 521.
The law is not in doubt that a petitioner alleging manipulation of voters register has the onus of proving effect of the alleged manipulation on the results of the election. In addition to pleading and proving an alleged manipulation of voters register, the petitioner has an added duty to plead and prove the effect of the alleged manipulation on the result of the election and where this is not done, the allegation of manipulation of voters register must fail and will not suffice as a ground for challenging the election or its result. See AKEREDEOLU V. MIMIKO (2014) 1 NWLR (Pt. 1388) 402 at 439
The law requires that a petitioner in proving corrupt practices beyond reasonable doubt must lead concrete evidence showing; a. That the respondent personally committed the corrupt act or aided, abetted, counseled or procured the commission of the alleged act of corrupt practices. b. Where the alleged act was committed through an agent, that the agent was expressly authorized to act in that capacity or granted authority; and c. The corrupt practice substantially affected the outcome of the election and how it affected it. In the case ofAUDU V. INEC (No.2) (2010) 13 NWLR (Pt. 1212) 456 at 544 the court alluded to the view that; “The charges of corrupt practices are in nature criminal charges and ought to be proved beyond reasonable doubt. A party who alleges that an election is invalid by reason of corrupt practices must prove the incidents of the acts complained of.”
The law has it that proving that a candidate is a member of secret society must be to the extent of proof beyond reasonable doubt. The court in line with the standard of proof for crime as followed in the decision in ADEDEJI V. KOLAWOLE (2006) 2 EPR 70, held in the case of ODON V. BARIGHA-AMANGE (No. 2) (2010) 12 NWLR (Pt. 1207) 13 at 55 that “The allegation of being a member of a secret society/cult made by the appellant against the 1st Respondent is one that constitutes an allegation of a crime that has to be proved beyond reasonable doubt and not just on the preponderance of evidence.” See also the case of OLATUNJI V. AKANDE (2006) 2 EPR 962 at 972-973.
In order to substantiate the allegation of presenting a forged certificate to the INEC, two conditions must be satisfied thus; 1. That the certificate presented by the candidate to INEC was forged 2. That it was the candidate that presented the certificate. The above conditions are the two ingredients that have to be proved beyond reasonable doubt pursuant to the Evidence Act. See-AUDU V. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456 at 507
Where there was over-voting in one or more polling booths/units, the tribunal will receive and rely on evidence of such from the voters register, voters cards, declaration of results and reports form. This must be accompanied with oral evidence showing and specifically tracing the incidence of over-voting to each of the poling units affected by the allegation of over-voting. Where the tribunal is convinced that there was over-voting in the said polling unit or units, the court or tribunal will invalidate the results of those polling units, but not automatically nullify the entire election. See- UMEZULUIKE V. OLISAH (1999) 6 NWLR (Pt. 607) 376 at 379
Where however, the invalidation of the affected polling booths are substantial enough to affect elections, the tribunal may order a nullification of the election and order fresh elections.
Where an election petition alleges that there are arithmetic or mathematical errors in the Declaration of results of Election form, the petitioner so alleging has the onus to specify the exact units of which he makes the allegation and what is the precise nature of the mathematical error alleged by him in the result. The petitioner must then call and tender sufficient evidence to prove the allegations. Where the petitioner fails to specifically plead and prove the mathematical or arithmetic errors alleged, the tribunal has a duty to discountenance his contentions against the validity of the elections. See- OJO V. ESOHE (1999) 5 NWLR (Pt. 603) 444 at 451.
Except where the Electoral Act states otherwise, any fact required to be proved at the hearing of a petition must be done by written deposition and oral examination of witnesses in open court. See paragraph 41 of the 1st schedule Electoral Act 2022
The answer is no. Paragraph 4 of the Practice Direction gives the petitioner the option of either attaching the copies or listing the documents where attaching them is not possible. Where the documents are not available at the time of filing, the petitioner can list them. See UKPO V. NGAJI (2010) 1 NWLR (Pt. 1174) 175 at 200 paras F-H
The answer is yes. A party can rely on averment contained in his opponent’s pleadings. The tribunal will be right to allow a respondent to tender a document as exhibit, by reference to the petition. See OLATUNJI V. WAHEED (2012) 7 NWLR (Pt. 1298) 24 at 48.
The answer is yes. But this is permitted only as long as the document so headed contains only cases considered relevant by the appellant or respondent in respect of submissions earlier made in their brief of argument and copious quotations from the cases, and also the document contains no further or additional argument in relation to any of the submission made by the appellant or respondent in their brief of argument. OZIGBO V. PDP (2010) 9 NWLR (Pt. 1200) 601 at 633
Any oral examination of witness at the hearing of a petition is allowed only to the extent that the witness is lead during his evidence in chief to adopt his written deposition and tender in evidence all disputed documents in support of his case. See paragraph 41(3) of the 1st Schedule Electoral Act 2022.
Yes. As a result of the special nature of an election petition and the need to dispense with it quickly, the tribunal, unlike what is obtainable in other normal judicial adjudication process, can by order limit the number of witnesses of either party to an appreciate-able number. See paragraph 41(7) of the 1st schedule Electoral Act 2022.
Unless a piece of evidence has been listed or filed along the petition or reply to a petition, no document will be received in evidence at the hearing of the petition except with the leave of the tribunal. The leave will only be granted where the party seeking to rely on the document shows some exceptional circumstance why he previously failed to include it in his List of Evidence to be relied upon or file same along with his processes. However, any such leave, if granted, will be granted together with cost. See paragraph 41(8)(9) of the 1st Schedule Electoral Act 2022.
In proving or responding to an election petition, the petitioner has 2 weeks to prove his case in the case of councilor, chairman and state house of assembly; 3 weeks in the case of House of Representative; 5 weeks in the case of Senate; 6 weeks in the case of Governor and 7 weeks in the case of president. In all these instances however, the respondent has only 10 days to present his defence. See paragraph 41(10) of the 1st schedule Electoral Act 2022
The burden to prove his case still rests with the party tendering those bulk documents by making reference to any particular bit of the bulk and explaining how it establishes whatever facts he alleges. The purpose of tendering documents in bulk is to ensure speedy trial, but it must be supported with evidence. It is not the duty of the court to make inquiry into the case outside the open court not even by examination of documents which were in evidence but not examined in the open court. A judge is an adjudicator not an investigator. See ACN V. LAMIDO (2012) 8 NWLR (Pt. 1303) 560 at 593.
Yes. On the hearing of an election petition, the tribunal have the power to summon a person as a witness whom according to the court is a person of concern to the election whose result is disputed. The tribunal’s power in this regard also extends to examining the witness so summoned. However, either parties to the petition will have the right to cross examine such summoned witness. See paragraph 42 (1)(2) of the 1st schedule Electoral Act 2022.
The answer is Yes. The form that the witness statements on oath must take is found in the 1st Schedule to section 13 of the Oaths Act thus, “I do solemnly and sincerely declare”. All written statements without the above declaration defining such as them oaths cannot be effective in the Practice Directions. See NKEIRUKA V. JOSEPH (2009) 5 NWLR (Pt. 1135) 505 at 526
The answer is No. The only “punishment for not frontloading the documents to be relied on is the inability of the petitioner to rely on the document not attached or listed as required by the provision. See INEC V. INIAMA (2008) 8 NWLR (Pt. 1088) 182.
A party who complains of vagueness may request the petitioners to furnish further particulars as to his allegation contained in the grounds of the petition to enable him adequately reply them on each allegation. See NWANKWO V. YAR’DUA (2010) 12 NWLR (Pt. 1209) 518 at 579 to 580.
The legal consequences of failing to file an application for further particulars or the direction of the court, where a complaint of vagueness is made is that the party complaining is deemed to have understood the grounds of the petitioners complaints, and is barred from so applying after the expiration of the time fixed by the Electoral Act. See NWANKWO V. YAR’DUA (2010) 12 NWLR (Pt. 1209) 518 at 579 to 580.
The financial responsibility to procure this witness rest on the government in the same way as state witness’ expenses. Except the tribunal directs otherwise, the expenses to procure witness is deemed to be costs of the election petition. See paragraph 42 (3) of the 1st Schedule Electoral Act 2022.
Where the tribunal gives an order for the production and inspection ballot used for election or for the production of the person who produces or will produce a document, the court ensures that the way and manner in which the vote of a particular person has been given is not disclosed. See paragraph 42 (5) of the 1st Schedule Electoral Act 2022
No. Any person called as a witness in an election petition case must answer all questions put to him truthfully. Such a person cannot refuse to answer on the ground that the information is privileged or that his answer will be self-incriminating. See paragraph 43 (1) of the 1st schedule Electoral Act 2022
Where a witness answers questions put to him in an election petition truthfully, he become entitled to receive a certificate of indemnity signed by the Chairman of the Tribunal or presiding Judge of the Court stating that the witness has answered truthfully and same shall not be cause for a proceeding against him. See paragraph 43 (2) of the 1st Schedule Electoral Act 2022.
No. Where in an election proceeding, a witness tells lies to deliberately pervert the justice of a case, any certificate of indemnity given him will not avail him from criminal prosecution of perjury. See paragraph 43 (3) of the 1st schedule Electoral Act 2022
When a person has received a certificate of indemnity in relation to an election and legal proceeding is nevertheless brought against him at any time for an offence committed by him before the issuance of the certificate, the tribunal or court having been made aware of the certificate, stays the proceeding and may at its discretion award to that person such costs as he may have spent in the proceeding See paragraph 43 (4) of the 1st schedule Electoral Act 2022.
There is reprieve in the rules where either party fails to attach relevant documents. The tribunal is empowered to still allow the use of such document with exceptional circumstances shown and upon leave duly sought and granted to do so. See IGBEKE V. EMORDI (2010) 11 NWLR (Pt. 1204) 1 at 40.
It is trite that a document is the best proof of its contents. Such a document must be; a. Duly pleaded, b. Rightly tendered, and c. Fully admitted and marked as exhibit by the court as part of the documentary evidence before it in that matter. Where the above conditions are met, the court will hold that it is the contents of the whole document that are in evidence. That being the case the court cannot disregard the document. See EMEJE V. POSITIVE (2010) 1 NWLR (Pt. 1174) 48 at 69 The Court held in AMOSUN V. INEC (2011) 8 EPR 290 Ratio 32 that; “Speaking generally, the established position of the law is that documentary evidence is the best form of evidence.”
The answer is yes in exceptional circumstances. The provisions of the Practice Directions empower the tribunal to grant leave in exceptional circumstances to receive in evidence documents which were not filed along with the petition in accordance with the Practice Direction. Exceptional circumstance in the Practice Directions is synonymous with the interest of justice in the First Schedule of The Electoral Act. See CHIME V. EZEA (2009) 2 NWLR (Pt. 1125) 263 at 355
The answer is no, it does not exactly follow that way. It’s the law that the fact that a document has been admitted, as in general civil cases, does not necessarily mean that significant weight should be automatically attached thereto. The fundamental principle is that, in determining the weight if any, to be attached to a document rendered admissible as evidence by the Evidence Act, regard must be had to all the circumstances from which any inference can reasonably be drawn regarding the question whether or not the document was made contemporaneously with the occurrence of existence of facts stated, and whether or not the maker of the said statement had any incentive to conceal or misrepresent facts. See Section 92(1) of The Evidence Act. It was held by the Supreme Court in the election case of BUHARI V. INEC (2009) 4 EPR 623 Ratio 36, as follows; “Admissibility of a document in evidence is quite different from the weight to be attached to it.” In sum, even though the court may have admitted the document in evidence, the weight to be attached to in deciding the preponderance of evidence depends on all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement in the document.
In the case of DR. CHRIS NGIGE V. HON. PETER OBI (2006) 14 NWLR (Pt. 999) 1 at 168-169 This question was answer with a capital NO. The judicial authorities agree that once a document was tendered in court or tribunal and it was marked rejected, it cannot subsequently be tendered and admitted as exhibit in the same case or petition. The tribunal will be acting rightly in rejecting any such document a second time where it was earlier tendered and rejected by the tribunal In ITA V. EKPENYONG citing OYETUNJI V. AKANNI (1986) 5 NWLR (Pt. 42) 461, it was held that a document which is marked rejected when tendered in evidence cannot subsequently be tendered and admitted in evidence in the case. A rejected document is a rejected document as far as that case/petition is concerned. This is save and only except that document was sought to be tendered and then upon some reasons arising, withdrawn by the application of the counsel who seeks to tender it. In that case it would not have been marked either rejected or exhibited as the court or tribunal would not have had the opportunity to rule on it either way. Thus it can be tendered later in the proceedings having not been marked rejected in that case, and having laid proper foundation and taken all necessary steps to ensure that it is admitted and admissible in law.
Documentary hearsay is not admissible in civil proceedings and more especially election petition matters. Documentary hearsay is when the maker and custodian of a document is readily available but another person is called upon as witness to tender the said document. For instance in the case of MARK V. ABUBAKAR (2009) 2 NWLR (Pt. 1124) 79 at 184-185 a set of documents were made by the police vide some police officers but were rather sought to be tendered through the electoral officers called as witnesses in the petition. The tribunal held and the appellate court upheld that “the makers of the statements who are identifiable as police officers should have been called or subpoenaed before the tribunal to testify and tender their reports".
Pursuant to Section 91(3) of The Evidence Act, 2011, as amended, a public document which was made for the purpose of an already commenced and on-going action in court ought not to be admissible in the court or tribunal. But a public document already in existence but certified when proceedings had commenced is not caught up by Section 91(3) of the Evidence Act. That does not qualify them as evidence made in anticipation of an action. See AWUSE V. ODILI (2005) 16 NWLR (Pt. 952) 416 at 477.
The answer is a straight No. It is a wrong proposition of the law for anyone to contend that uncertified originals of public documents are inadmissible. Where a copy of a document is certified, it is certified to be a true copy of the original. If then the original is to be certified, what will it be certified to be? Will it be certified as a true copy of itself (original)? There is a clear provision of law that public documents have to be certified to be admissible in court. This position was upheld in ALATAHA V. ASIN (1999) 5 NWLR (Pt. 601) 32 at 42-43 and a plethora of other cases, but it must be noted that the need to certify a public document as held in all judicial authorities only arises where the public document is available as a copy. The copy will then need to be certified as a true copy of the original document. In the case of AGBALLAH V. NNAMANI (2006) 2 EPR, 757, the court held in listing the conditions and procedure for certifying a public statement cited Section 111 of the Evidence Act, 2004 (now Section 104 of the Evidence Act, 2011) to include a certification “(d) That it is a true copy”. It cannot therefore be the law that an original ought to be certified because it is not a copy and as such cannot be either true or false. The legal position, for all intents and purposes, is that the document itself (that is the original document) of which copies may be made and certified remains admissible. That original, when tendered, is admissible without more. EBU V. ODUN (2004) 14 NWLR (Pt. 892) 76 at 88; INEC V. RAY (2004) 14 NWLR (Pt. 892) 144 at 186-187
The answer is no. The law is clear that once a document has been validly admitted and such document is not shown to be a nullity, the trial Tribunal or court does not possess the power to expunge the very document it had earlier admitted, all though if when considering counsel addresses it is persuaded to consider and accept that the admission was wrongful, the evidential weight will now be whittled down accordingly. See IYAGBA V. SEKIBO (2010) 7 EPR 857 at 878-879.
The answer is No. In the case of TANKO ABDULLAHI V. EMMANUEL O. OLAYO (1993) 1 NWLR (Pt. 268) 171 at 210, the court held that the parties cannot by their consent or admission, render admissible, that which is inadmissible. In the case of AGBALLAH V. NNAMANI (2006) 2 EPR, 757, the court considered the provisions of the then Section 111(1) of the Evidence Act, 2004 (now Section 104 of the EA, 2011) which provides the steps for the certification of public documents as a pre-requisite for their admissibility by any court or tribunal. The Court of Appeal held in concluding that parties cannot waive the provisions that make for admissibility of a document thus; “This requirement is not some fanciful provision. They are the essential characteristics that mark out public documents and give them the authenticity and admissibility in a Court of law. Merely stamping, signing, and initialing by some unidentified officials cannot take the place of such certification which is required in the preservation and protection of public interest. No short cuts, no alternatives.” Even where the other party does not oppose the document, once a document that ought to be certified is uncertified, it remains inadmissible as a photocopy and the acquiescence of the opposing party does not make it admissible.
The answer is no. The law is settled on the inadmissibility of photocopies of certified true copies of public documents especially in an election petition where documents that require certification are heavily relied on. The net effect is that even already admitted exhibits by a trial tribunal, being mere photocopies of public documents (photocopies of certified documents not themselves certified are mere copies), are inadmissible pieces of paper that should not have found their way into the records of a tribunal or court. In a word, although such documents may have been duly and properly frontloaded with the petition, it is undeniable that being photocopies of certified true copies of public documents, such are wrongly admitted in evidence and submission to prove them otherwise are as weak kneed as they are unsupportable. In the case of OGBORU V. UDUAGHAN (2011) 8 EPR 476, the Court held as follows; “We, therefore hold that… the tribunal was wrong in admitting the said exhibits, photocopies of certified copies of public documents. The above-mentioned exhibits are hereby expunged from the proceedings culminating in the judgment of the tribunal. We owe it as a duty to discountenance such inadmissible pieces of evidence and to determine this appeal only on the legally admissible evidence. Further in the case of BALONWU V. EMORDI (2010) 1 NWLR (Pt. 1174) 79 at 91 the court held thus; “The court below was right to reject the photocopies of certified true copies of the voters register tendered by the petitioner/appellant. A photocopy of the voters register is clearly inadmissible.” MINISTER OF LANDS WESTERN NIGERIA V. AZIKIWE AND ORS (1969) 6 NSCC 31.
Section 104 of The Evidence Act, 2011, provides for the certification of public documents thus;
- Every public officer having custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
- The certificate mentioned in subsection (1) of this section shall be dated, and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
- Any officer who, by the ordinary course of official duty, is authorized to deliver such copies shall be deemed to have the custody of such documents within the meaning of this section. The clear requirements are, a certification at the foot of the document that it is a true copy, the name of the officer certifying same, his official title, date, subscription or signature, and his seal where there is any used by him regularly. See INEC V. RAY (2004) 14 NWLR (Pt. 892) 144 at 186-187
The answer is that, an election petition tribunal suo motu rejecting a document sought to be tendered by a party which has not been opposed by any other party is improper. When all the parties do not object to admissibility of the document, that the tribunal cannot on its own summarily reject the document as the rules of evidence applicable in civil matters as regards admissibility of documents that is also applicable in election petitions. If there is any rules of evidence that makes the document inadmissible in evidence, it is incumbent on the tribunal to call on all the parties to address the tribunal on that point before it rules on it. The rationale behind this principle of the law is that where the court or tribunal rules out a document without first allowing addresses by the parties on the possible issues which in the mind of the tribunal or court render it inadmissible, it would amount to shutting out the parties and a denial of their rights to fair hearing enshrined under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and a violation of the natural justice pillar principle of audi alterem patem, which connotes that the court or tribunal must on all issues affecting parties hear all sides before delivering its ruling. The ruling summarily rejecting a tendered document therefore is a violation of justice and ought not to be. See EBU V. OBUN (2004) 4 NWLR (Pt. 892) 76 at 87
The answer is yes. In EGBA V. APPAH (2005) 10 NWLR (Pt. 934) 464, the appellants only tendered some documents in evidence without calling anyone to explain their purport. Obviously this was done at the time when frontloading was not in operation generally in many courts and tribunals. The Court of Appeal, stated that documents are not objects that can be cross-examined and therefore oral evidence must be called in support thereof. See EZE V. OKOLOAGU (2010) 3 NWLR (Pt. 1180) 183 at 211.
The Evidence Act provides for a scenario of this nature by stating thus; “In any trial, where one party withholds the evidence which he ought to bring before the court, the presumption is that that evidence if made available would be against that person.” IGBEKE V. EMORDI (2010) 11 NWLR (Pt. 1204) 1 at 35 This position of the law was also maintained and held in the earlier decided case of BUHARI V. OBASANJO (2005) 13 NWLR (Pt. 941) 1
Where a petitioner alleging the non-holding of election establishes prima-facie that election did not in fact hold, the burden of establishing that election did hold shifts to the respondents. See DINO V. DANIEL (2010) 11 NWLR (1204) 137 at 165.
When the subject matter is an election petition, it is civil by nature and which, needless to say, requires proof on a balance of probabilities or preponderance of evidence. Even though this would seem, and should be an elementary principle of law, the question keeps arising because allegations like falsification of results and the other usual facts alleged in a normal election petition which seeks to impeach the electoral process, the election or the candidate can appeal criminal in nature and in some cases, counsel have argued and submitted vehemently that such facts ought to have been proven beyond reasonable doubt as required in criminal matters. But the position of the law as held in a plethora of judicial authorities remains that election matters are not criminal in nature, and any party who seeks the criminal conviction or trial of any person for electoral offences should go through the criminal courts and applicable law enforcement agents and procedure laid down for prosecution of criminal cases. However, an election petition in its pure form as a civil matter only requires proof on a balance of probabilities or preponderance of evidence to convince the court or tribunal of the case of the petitioner or other party alleging any facts therein. See FAYEMI V. ONI (2010) 17 NWLR (Pt. 1222) 326 at 385.
The answer is yes. By INEC failing to produce the electoral materials especially the voters register, in any election petition, it cannot be said that election was properly held in any of such places in question in the petition. The absence of the voters register would imply that there is no proof that the requirement of accreditation was carried out. It is only when the tribunal upon evidence examines the voters’ register that it would be able to ascertain whether or not accreditation took place or not in each and any of the polling units involved in the election subject of the petition. See FAYEMI V. ONI (2010) 17 NWLR (Pt. 1222) 326 at 392.
His Lordship, Mohammed, JSC in the case of DAGAYYA V. STATE (2006) 7 NWLR (Pt. 980) 637 at 677, described the word “contradiction”, as rooted from two words contre which means “opposite” and dicere which means “to say”. Therefore in ordinary interpretation to contradict is to speak or affirm the opposite or contrary. The import of this is that in the law of evidence, a particular evidence can be said to be contradictory to another evidence when it states, asserts or affirms the opposite of what the other evidence asserts, affirms or seeks to prove. It must be made clear that contradictions are differences over the issues and not necessarily when there are some minor discrepancies, in say, details between them. In the case of EZE V. OKOLOAGU (2010) 3 NWLR (Pt. 1180) 183 at 216-217 the court held that; “The law does not say that there should be no contradiction in the evidence of witnesses, what it does say is that the contradiction should not be material.” See also ENAHORO V. QUEEN (1965) 1 All NLR 125
The answer is no. Section 6 provides for the admissibility of relevant facts. However the court held in the case of ODON V. BARIGHA-AMANGE (No. 2) (2010) 12 NWLR (Pt. 1207) 13 at 57 that since and where a person is disentitled to prove a fact by evidence under a law, that evidence becomes irrelevant in the proceedings by the operation of that law.
Where a petitioner alleges that there was no voting at an election, or that certain qualified voters were disenfranchised (that is not allowed to cast their votes), the petitioner must call a voter from each of the polling booths in the alleged affected constituency as witness. The said voters would have to tender their voter’s cards and testify that they did not vote on the day of election. The law is that evidence of non-voting in a particular polling booth is provable by production of voters register, production of voters’ cards and the oral evidence of registered voters who were available and turned up to vote at their respective polling booths on the day of the election but could not vote for a variety of reasons. – See AYOGU V. NNAMANI (2006) 8 NWLR (Pt. 981) 160 at 166 In the case ofAUDU V. INEC (NO. 2) (2010) 13 NWLR (PT.) 456 at 522-523 the court held that “the non-tendering of voters cards of the persons alleged to have been disenfranchised, and no evidence to show that the names of those disenfranchised voters were not actually ticked as having voted in the voters’ register is fatal to the case of the appellant.”
In order to prove over-voting the tendering of
A petitioner will be unable to prove over-voting where he does not relate the document tendered with the evidence before the tribunal. It is settled law that a party relying on documents in proof of his case must tie the documents and their contents to the evidence given by his witnesses in court and show how the documents aid his case. The court cannot assume the duty of tying each document tendered to the specific aspects of the case. Where the petitioner has opted to tender voters registers, ballot boxes and ballot papers therein contained, in proof of over-voting, the duty lies on that party to show through evidence led before the tribunal, that the contents of the voters register, the ballot boxes and their ballot papers reveal over-voting, that is to say that the number of total votes reported/recorded exceeds the number of registered and accredited voters. See AUDU V. INEC (NO. 2) (2010) 13 NWLR (PT.) 456 at 547.
As a personal opinion which is not the law, one would so, only as an Editorial contribution, that it is not only unfair, it is unreasonable to expect that those who did the ballot box stuffing and who are aware that the matter has gone to the tribunal from where a request, in all probability, is going be made for the ballot box to be produced as an Exhibit in the tribunal for its content to be recounted, would not do anything to tamper with the evidence. But that is what the law is as held in the case of EDET V. EYO (1999) 6 NWLR (Pt. 605) 18 at 29, the Court held that to give evidence on such an issue with credibility, the ballot boxes in which the said ballot papers were allegedly stuffed must be tendered before the tribunal and opened there. It is only when ballot boxes are tendered before a tribunal and opened before it for the contents to be seen by everyone present in the tribunal that the allegations of the petitioner can be said prima facie to be sustainable. In that case the court said that: “The law is settled, that in an election petition, where the petitioner makes an allegation of crime, as in this case, against a respondent and he makes the commission of a crime as the basis of his petition, the Evidence Act imposes a strict burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge the burden, his petition must fail” The sum of the judicial elucidation above is that allegations that the ballot boxes were stuffed is criminal in nature and the standard of proof is higher for the petitioner to satisfy, if the court or tribunal must rule in his favour on the petition. See INIAMA V. AKPABIO (2008) 17 NWLR (Pt. 1116) 225 at 205 The requirement of a Petitioner, (who has no custody of the ballot box, which is actually in the custody of INEC, usually a respondent) to tender the ballot box with the over-stuffed ballot papers still in it and as was on the day of the election, is a very tall order.
We make bold to suggest, for Petitioners’ Counsel, that the way to overcome this is to instead of alleging Ballot Box Stuffing, to allege Over-voting which can be proved through the results sheets reflecting the No. of Registered voters, No. of Accredited voters, No. of valid votes, No. of spoiled papers, No. of Rejected papers, No. of Total Votes Cast. Over voting can be pleaded as being a mistake in calculation by some officer somewhere along the line of electoral duties on that day. Mistake falls within the realm of civil matters. It still lead to cancellation of that particular Unit or Registration Area result. However, where the Officials are alleged to have stuffed the box only to the limit of the number of votes, the option for proving the stuffing would then be by verifying the accreditation and accredited voters and thereby proving, if so, that the extra ballot papers alleged to have been stuffed where those of persons who were not accredited even though the total number of valid votes tallied with the total number of registered voters.
There is no doubt that thuggery and violent disruptions or interruptions of the electoral process have characterized some elections in the past. When these activities are alleged by a petitioner to have occurred during an election, such allegations amount to criminal allegations in nature and must be proved by the same standard as which facts are proved in the adjudication of a criminal prosecution. The required standard therefore would be proof beyond reasonable doubt. The court held in the case of OGU V. EKWEREMADU (2006) 1 NWLR (Pt. 961) 255 at 282 that thuggery and violent disruption of election are criminal acts, and there must be established, by credible evidence, a nexus between the perpetrators and the person declared winner of the elections, being a respondent in the election petition. The person alleging the thuggery and violence must not only prove beyond reasonable doubt that the said acts occurred to the end of disrupting the elections. He must as well prove the connection of the party who was declared winner to the thugs and their acts of violence. In the case of AYUA V. ADASU (1992) 3 NWLR (Pt. 231) 598 at 600, the court held thus;
“Any agency relationship involves the consent of the agent and the principal that one should act for another… in the instant case apart from there being no evidence between the 1st Respondent and Uwah or Professor Lornem, there are no facts from which any agency may be inferred.”
Thus, there must be either an agency relationship between the alleged thugs or perpetrators of violence and the contestant whose victory at the concluded elections is petitioned against on grounds that it was disrupted by violence.
The person who asserts that election took place has the onus placed on him to prove that fact. When a petitioner makes the usual submission and allegation of fact that elections did not in fact hold and as such the declaration of the respondent as winner was unconstitutional, the respondent usually responds with assertions of fact that elections actually held which he achieves by the presentation of the result with the official seal and stamp of the electoral official. It therefore behoves him to prove by evidence that elections actually held especially when the petitioner has made out a prima facie case (such as testimonies of voters in the various units comprising the Election Area in question who testify that they came out to vote but no electoral official came around or just came and left without conducting and overseeing the voting process, that there was shooting of guns all through the period and they all ran away for fear of being killed, etc.etc.) that elections in fact did not hold. See AMGBARE V. SYLVA (2009) 1 NWLR (Pt. 1121) 1 at 60
The answer is yes. When the evidence of the petitioner or his witnesses in the witness box fully support the crux of the respondent/defendant’s case, the respondent need not call any further evidence in proof of his case. Thus, where the case of a petitioner establishes the case in favour of the respondent, the court or tribunal will not require or compel him to call any witness in support of his case. In this case, we say that the respondent rests his case on the evidence of the petitioner and his witnesses. – See OLOWU & ORS V. OLABOWALE OLOWU (1985) 3 NWLR (Pt. 13) 372 at 383 In the case of BELLO V. ARUWA (1999) 8 NWLR (Pt. 615) 454 at 471-472, the court considered the evidence given at the tribunal whereat a witness stated as follows: “As the Resident Electoral Commissioner, I am still satisfied as I am here now that the 1st Respondent won the election”. The Court went on to hold thus; “It is necessary to observe here that this last statement in the evidence of appellants (petitioner’s) witness has completely removed any weight remaining on the scale of justice containing the evidence in support of the appellants’ case that it was the 1st appellant that won the election. With this evidence therefore even though under cross examination, it became quite obvious that the respondents had been relieved of any burden to call evidence to put on their own side of the scale as there was nothing left on the other side of the scale in terms of credible evidence in favour of the appellants. The conduct of the learned counsel for all the respondents in refusing to call evidence is therefore in order.
It is the law that where a party fails to call evidence in support of his case or in rebuttal of the case of the opposite party, the trial court is entitled to resolve the matter against that party unless there be some other legal reasons to the contrary. See the case of LAWAN V. YAMA (2004) 9 NWLR (Pt. 877) 117 at 143
Clear and unequivocal proof is required before a petitioner can establish a case of bribery. Suspicion however strong is not sufficient, and the mere fact that somebody else committed the crime and bribed other persons to vote for a particular candidate is not enough nor is it conclusive. It has to be shown that either the candidate who is alleged to have bribed the voters or his acknowledged agent, or that he authorized what was done or subsequently ratified it as coming from him. See the case of ANAZODO V. AUDA (1999) 4 NWLR (Pt. 600) 530 at 546.
No, the tribunal will not concern itself with the trial of the indicted persons as it has no jurisdiction to try criminal offences. According to the provisions of Sections 144 and 145(1) of the Electoral Act, 2022 what the tribunal would do will be to make recommendation to the Commission with respect to the prosecution by the Commission of those persons indicted by the election petition allegations of commission of offences in Magistrate Court, State or Federal High Court.
Some allegations categorized as corrupt practices may be criminal in nature though they can still be described as non-compliance with the provisions of the Electoral Act.
The court held in GOYOL V. INEC (No. 1) (2012) 11 NWLR (Pt. 1311) 207 at 215 that “Where a petitioner grounds his petition on non-compliance with the Electoral Act and set out his particulars the nature of the non-compliance as founded in ballot box snatching and multiple thumb printing as in this case, the burden of proof on him is beyond reasonable doubt.” So the tribunal will still go ahead to hear the matter, treating those allegations of ones of electoral malpractices but using the standard of proof to that of beyond reasonable doubt usually applied in criminal trial.
The position of the law is that where in election proceedings, which are civil matters in nature, the averments alleging crime are severable, that after such severance the remaining facts in the pleadings have sufficient averments devoid of crime against any party to the proceeding on which the petitioner can succeed in the petition, then the burden of proof on the petitioner will change and he will not have to prove beyond reasonable doubt but rather on a balance of probabilities. This was the position of the law maintained in the case of GOYOL V. INEC (No. 1) (2012) 11 NWLR (Pt. 1311) 207 at 215.
The answer is no. Although for the purpose of identification, the ballot papers should have been marked as exhibits, but the mere fact that they were not so marked does not detract from their relevance and the weight to be attached to them. See ANAZODO V. AUDA (1999) 4 NWLR (Pt. 600) 530 at 548
The answer is no. There is a plethora of authority which allows the testimony of a witness to be believed partially and be rejected in part. It all depends on what is credible and materially relevant to the case or aspect of it in question. See AJERO V. UGORJI (1999) 10 NWLR (Pt. 621) 1 at 20.
The evidential rule of law on this is that the petitioner alleging inflation of figures would need to credibly prove his allegation by giving particulars of the inflated figures and also establishing through figures that if the number of votes by which the number of votes at the election was inflated in favour of the candidate declared as winner of the election are removed, the result would change in his favour. See AJADI V. AJIBOLA (2004) 16 NWLR (Pt. 898) 91 at 168-169
The position of the law regarding the type of evidence which must be led in support of allegations in which figures or scores of candidates at an election are being challenged should come direct from the officers who were on the field where the votes were counted and/or collated. Any other person’s evidence on the matter is hearsay and as such inadmissible. See BUHARI V. OBASANJO (2005) 13 NWLR (Pt. 941) 1 at 315
It has been long settled that any petitioner seeking a nullification of an election on ground of insufficient provision of ballot papers by the electoral body i.e. INEC in the instant case, during the election must show that if the number of ballot papers withheld were all released, all the voters deprived of voting would have voted for him and made him to win the election. See EBEBE V. EZENDUKA (1998) 7 NWLR (Pt. 556) 75
A compilation of illegal voters register for use in any election is a criminal act and as such ought to be proved beyond reasonable doubt. This principle applies in an election case where allegation of compilation of illegal voters register is made. Where it is not proved to the standard of being beyond reasonable doubt, the petition where it is hinged on will surely fail. See AKEREDEOLU V. MIMIKO (2014) 1 NWLR (Pt. 1388) 402 at 439.
The answer is No. The courts have deviated from the decision in Unongo V. Aku and have rather held that there is nothing unconstitutional in the prescription of time constraint both for the filing and the determination of election petition which is in public interest. See YUSUFU V. OBASANJO (2003) (Pt. 847) 554 at 603-605.
The tribunal to determine whether it was filed within time has to scrutinize the process filed by the petitioner to discover when the result of the election was declared, which is when the cause of action arose and compare that date with the date the said originating process was filed, See SALEH V. MOHAMMED (2010) 12 NWLR (Pt. 1209) 518 at 628
A court purporting to exercise jurisdiction outside the time prescribed by statute is on a thankless and unworthy pursuit of its own. Such decision lacks requisite jurisdiction or force of law, and so, invalid. See OHOCHUKWU V. EMEREGWU (1999) 5 NWLR (Pt. 602) 179 at 256.
The application requesting that the petitioner furnish further particulars can be made immediately the party requesting files its memorandum of appearance or 10 days after filing its reply to the petition. See NWANKWO V. YAR’DUA (2010) 12 NWLR (Pt. 1209) 518 at 579 to 580.
No, a party who does not timeously apply to set aside any act done in non-compliance with the provisions of the rules is deemed to have acquiesced or waived the same. See ODON V. BARIGHA-AMANGE (NO. 2) (2010) 12 NWLR (Pt. 1207) 108 at 150.
The answer is no. Election Petitions are sui generis and special rules apply to them especially with respect to time for different stages of the proceedings. While in general civil proceedings, the Supreme Court may order rehearing of the appeal by the Court of Appeal and the Court of Appeal may order rehearing of the case at the trial court, with election petitions it is not always exactly so. On a different note, in election petition matters, time is prescribed by the Electoral Act and the Constitution for the commencement and conclusion both of hearing the substantive election petition and for hearing any appeals arising therefrom. Where the time prescribed in law has expired, the Court cannot extend that time by any guise. An order directing the rehearing of an election matter after the time prescribed in law has expired is ultra vires as even the Apex Court itself has held repeatedly that it lacks the locus to so order. When the time has elapsed, the election petition has ended and expired to all intents and purposes. See IKENYA V. PDP (2012) 12 NWLR (Pt. 1315) 493 at 508.
The answer is no. It must be made clear that the constitution sets up the Federal and State Governments. It establishes a National Government divided into three independent branches. There is no document superior to the Constitution in democratic governance. It is the heart and soul of the people. That explains why the constitution commences with “We the people of the Federal Republic of Nigeria having firmly and solemnly resolved:…” The above implies that all provisions in the constitution were put in by the accredited representatives of the people. For as long as they are not amended by the legislature, the people’s representatives, all provisions in the constitution remain sacrosanct. The duty of the judiciary is to interpret the constitution as it is and not as the judge or justice would like it to be. Section 285(6) and (7) of the Constitution of the FRN 1999, provides the time within which an election tribunal and the Court of Appeal shall deliver their judgment. A court that extends the time provided therein would be wrong, as that would amount to judicial legislation, the preserve of the legislature. Thus, it’s not allowed, lawful or with any valid effect, for a court of law of any hierarchy to attempt or purport to extend the time allowed under the constitution for an election petition tribunal to deliver its judgment. See UGBA V. SUSWAM (2014) NWLR (Pt. 1427) 264 at 343-344
The answer is no. It is not the function of any party to a petition to produce dispute for an opponent. The petitioner or other party seeking such testimony can subpoena the presiding officer through the INEC Abuja Office and not by compelling INEC being a party in the petition to produce the presiding officer as if he were a document. The tribunal has no business directing INEC to produce witnesses for any party. ANAZODO V. AUDA (1999) 4 NWLR (Pt. 600) 530 at 548.
It is our law that where and whenever an illiterate witness has made his statement in a native language or vernacular in writing, that both the statement in a native language and the English translation of the original statement have to be tendered together and in that case the jurat so provided in respect of the statement must be signed by an interpreter who recorded the statement. Where this is not done, the statement will not be admissible in evidence at the election petition tribunal as its recording and tendering has not complied with the provisions of The Illiterates Protection Act, LFN, 2004. See GUNDIRI V. NYAKO (2014) 2 NWLR (Pt. 1391) 211 at 260-261
Yes, it is admissible. The law is that any person at the polling units during election is competent to testify at election petition tribunal except he is disqualified by any provision of any law. Once the witness is not disqualified by any law and his evidence is relevant to the issue in contention at the tribunal, it is immaterial that he has no official role to play at the polling unit at the material time. The court held in SIJUANDE V. OYWOLE (2012) 11 NWLR (Pt. 1311) 280 at 312-313 as follows; “The witness could be a passer-by, he could be a thief but once he is not disqualified by any provision of any law and his evidence is relevant and not inadmissible hearsay, he is competent to testify for either side in an electoral contest.”
Where a witness has not made any statement contradictory in evidence in chief, the other party is entitled in law to cross-examine to discredit the witness and where there is nothing hostile in the evidence of the witness, he cannot be declared a hostile witness. See AWUSE V. ODILI (2005) 16 NWLR (Pt. 952) 416 at 495,
The answer is no except fraud is alleged. It is settled law that a document which is tendered in court is the best proof of the contents of such document and therefore no oral evidence will be allowed to discredit or contradict the contents that are obviously on the face of it. See IGBEKE V. EMORDI (2010) 11 NWLR (Pt. 1204) 1 at 35 The only time or exception upon which an election petition tribunal or court will allow for oral evidence to be given to contradict a document if and when it is alleged that the document is forged or is a creation of or was obtained by fraud. See ANYANWU V. UZOWUAKA (2009) 13 NWLR (Pt. 1159) 445; FASOGBON V. LAYADE (1999) 11 NWLR (Pt. 628) 543 at 560-561
It is the law that evidence elicited from a party or his witness under cross-examination which goes to support the case of the party cross-examining will only constitute evidence in support of his own case, where it establishes facts that are already contained in his pleadings. The facts on which evidence is elicited must be pleaded facts.- See DAGGASH V. BULAMA (2004) 14 NWLR (Pt. 892) 241 In such a case, the party may choose to not call any witness of his own and rather choose to rely on the evidence elicited from the opponent or his witness during cross-examination. See- EZE V. OKOLOAGU (2010) 3 NWLR (Pt. 1180) 183 at 291 Where a party as stated above relies upon evidence elicited during cross-examination and does not go on to call any witnesses in support of his case, it cannot be said that he has not given or proffered any evidence in support of his case. It may only however be said that he called no witnesses, the evidence of the opponent of opponent’s witness having proven his pleaded facts and case. AKOMOLOJE V. GUARDIAN PRESS LTD (2010) 3 NWLR (Pt. 1181) 338 at 351