Standard of Proof of Complaint of Non-Compliance with the Electoral Act

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 19th day of January, 2024

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Uwani Musa Abba Aji

Mohammed Lawal Garba

Ibrahim Mohammed Musa Saulawa

Tijjani Abubakar

Justices, Supreme Court

SC/CV/1226/2023

Between

1. JIBRIN MUHAMMAD BARDE                                                     APPELLANTS

2. PEOPLES DEMOCRATIC PARTY (PDP)

And

1. INDEPENDENT NATIONAL ELECTORAL  RESPONDENTS       COMMISSION (INEC)

2. ALL PROGRESSIVES CONGRESS (APC) 3. YAHAYA MOHAMMED INUWA

(Lead Judgement delivered by Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)

Facts

The 3rd Respondent as the candidate of the 2nd Respondent, together with the 1st Appellants and other candidates, contested the Gombe State Gubernatorial election conducted by the 1st Respondent on 18th March, 2023. At the conclusion of the election, the 3rd Respondent was declared the winner having scored 342,821 of the votes cast as against 233,131 votes scored by the 1st Appellant. He was returned by the 1st Respondent as the Governor-elect of Gombe State. Dissatisfied with the outcome of the election, the Appellants filed a petition before the Governorship Election Tribunal sitting in Gombe State. The Tribunal found no merit in the petition and consequently, dismissed the petition.

Aggrieved, the Appellants appealed to the Court of Appeal which dismissed the appeal and upheld the decision of the trial Tribunal. Consequently, the Appellants filed a further appeal at the Supreme Court.

Issues for Determination

 In determining the appeal, the Court considered the issues for determination raised by the 1st Appellant as follows:

(i) Whether the court below rightly held that the Appellants’ petition was a pre-election matter, amounted to an abuse of court process and liable to be struck out? 

(ii) Whether the court below was right when it endorsed the finding of the Tribunal that paragraphs 33-35, 39-41, 46-45 and 72-113 of the Appellants’ reply to the 2nd Respondent’s reply and paragraphs 33, 34, 39-41, 46-114 of the Appellants’ reply to the 3rd Respondent’s reply to the Petition contravened paragraph 16(1) of the First Schedule to the Electoral Act, 2022, rendering them liable to be struck out.

(iii) Whether the court below was right when it upheld the finding of the Tribunal that the Appellants’ documents at the trial were dumped without identification relating to specific areas and demonstration, thus, rendering them worthless and of no probative value.

(iv) Whether the court below rightly agreed with the Tribunal that the Appellants did not prove their case, to be entitled to the reliefs sought in the petition.

Arguments

Arguing the 1st issue, Counsel for the Appellants argued that by Section 29(5) and 29(6) of the Electoral Act, qualification/disqualification to contest are both pre- and post-election matters, and that the word “court” in Section 29(6) of the Act should be read to mean election petition. He submitted that Ground A of the petition which challenged the qualification of the 3rd Respondent to contest for the office of Governor of Gombe State on the basis that he presented a forged certificate to the 1st Respondent, does not fall within the definition of pre-election matters in Section 285(14)(a) of the Constitution. On the finding that the petition was an abuse of court processes, Counsel submitted that the suits that commenced at the Federal High Court and terminated at the Supreme Court challenging the qualification of the 3rd Respondent, which the Court held that the petition was abusive of, were never determined on the merit.

He argued further that the lower court was wrong when it held that, there was no pleading to the effect that a false certificate was presented. He contended that the allegation that the 3rd Respondent provided false information in his INEC Form EC9 in respect of his work history, is tantamount to the presentation of a forged certificate. 

In response, Counsel for the 1st Respondent submitted that the Apex Court has held consistently that matters relating to the correctness of information given in Form EC9, is a pre-election matter. He relied on Section 29(5) & (6) of the Electoral Act, 2022. 

On the issue of abuse of court process, Counsel for the 2nd Respondent argued that having litigated the issue of disqualification as a pre-election issue before the Federal High Court up to the Supreme Court, the Appellants cannot approbate and reprobate, particularly as the appeal before the Supreme Court was still pending at the time the petition was filed. Counsel for the 3rd Respondent, made similar arguments.

On the 2nd issue, Counsel for the Appellants argued that contrary to the concurrent findings of the courts below, the affected paragraphs of the Appellants’ replies to 2nd and 3rd Respondent’s replies did not contravene paragraph 16 of the First Schedule to the Electoral Act, as the 2nd and 3rd Respondent had in their replies, introduced new facts.

Counsel for the respective Respondents submitted similarly, that the finding of the lower court on the issue cannot be faulted. 

On the 3rd issue, Counsel for the Appellants contended that the documents tendered and relied upon at the trial by the Appellants, were duly demonstrated and linked to specific aspects of their case. He submitted that since documents cannot be varied by oral evidence, the Tribunal ought to have examined and relied on them. 

On the 4th issue, Counsel for the Appellants argued that the Tribunal failed in its duty to examine the documents tendered. He argued on the issue of non-compliance that, the testimony of the Appellants’ witness and the documentary evidence tendered, established the election was invalid by reason of non-compliance with the provisions of the Electoral Act.

Responding, Counsel for the 1st Respondent observed that notwithstanding the fact that the Tribunal expunged the evidence of PW2 along with Exhibit P35, it still bent over backwards and gave consideration to PW2’s evidence as it touched on Ground B and C of the petition. He submitted that not only did the Appellants dump documents on the Tribunal without linking them to specific aspects of their case, no ballot boxes were tendered to prove ballot box stuffing and multiple thumb printing as alleged, and the Appellants failed to tender any BVAS machine to prove their allegation of over-voting. He contended that aside from the presumption of the correctness of the result, the onus was on the Appellants, who sought declaratory reliefs to rebut the presumption, and not on the 1st Respondent to plead or prove what is statutorily presumed in its favour.   

The submissions of Counsel for the 3rd Respondent, were basically in tandem with the arguments of the 1st and 2nd Respondent.

Court’s Judgement and Rationale

In determining the 1st issue, the Apex Court reproduced the provision of Section 29(5) and (6) of the Electoral Act, 2020 and held that clearly, Section 29 of the Electoral Act relates to pre-election matters concerning primary election of political parties. The Court held further that the word “court” used in sub-section (6) cannot be interpreted to mean Tribunal, as argued on behalf of the Appellants, as sub-section (5) clearly states that the suit shall be filed at the Federal High Court. The Court referred to its decision in APM v INEC (2022) 13 NWLR (PT. 1846) 159 @ 181 -182, that disqualification of a candidate on grounds of false information contained in his CF001 or EC9 is a pre-election matter. The Court held that an alleged false statement as to the candidate’s work history does not fall within Section 182(1)(j) of the Constitution to warrant the disqualification of a candidate on that ground. The Supreme Court also held that the same issue raised in Ground A of the petition had in fact, been pursued from the Federal High Court to the Supreme Court as a pre-election matter, hence, the Court of Appeal was right when it held that the Appellants’ Ground A was a pre-election matter in which the Tribunal lacked jurisdiction, also that it constitutes an abuse of court process, having regard to the fact that the complaint therein was already subject of pending litigation in a pre-election matter before the Supreme Court.

On the 2nd issue, the Supreme Court, reiterated its decision in OGBORU v OKOWA (2016) 11 NWLR (PT. 1522) 84 @ 113 – 114G, that Petitioners are not entitled to set up in their reply to the Respondents’ replies to their petition, either a new cause of action, ground or new facts outside or inconsistent with their petition, and where their reply departs from their petition, the Tribunal will be justified on an application to strike out their reply in which the defect has occurred. The Court held that after taking a careful look at the affected paragraphs in the Appellants’ replies, it was in agreement with the concurrent findings of the two lower courts that the said averments sought to introduce new facts and evidence whereas there were no new issues raised in the pleadings of the 2nd and 3rd Respondents.

In its joint resolution of the 3rd and 4th issues, the Apex Court held that by virtue of Sections 131 and 132 of the Evidence Act, the burden of proof in an election petition where declaratory reliefs are sought, lies on the Petitioner, as he is the party who would fail if no evidence is produced on either side. The Court held that it is not enough for the Petitioner to prove the alleged non-compliance; the Petitioner must go further to prove that the alleged non-compliance substantially affected the outcome of the election in line with Section 135(1) of the Electoral Act, and this evidence is crucial in view of the legal presumption of correctness in favour of election results. Reference was made to the Court’s earlier decision in ATIKU & ANOR v INEC SC/CV/935/2023 delivered on 26/10/2023. 

The Court held that although Section 137 of the Electoral Act provides that it shall not be necessary for a party who alleges non-compliance with the Electoral Act in the conduct of an election to call oral evidence where originals or certified true copies manifestly disclose the non-compliance, this does not preclude a Petitioner of the need to adduce oral evidence to prove non-compliance where the non-compliance complained of is not manifest on the face of the documents tendered. The Court held that the documents required to prove over-voting are (1) the voters register; (ii) the Bimodial Voter Accreditation System (BVAS); and (iii) Form EC8As and failure to tender of these documents is fatal to the petition.

On the whole, the Supreme Court found that the documents tendered by the Appellants to prove that polling unit results (Form EC8A) were not signed, stamped or dated in respect of 347 polling units, were dumped on the Tribunal without the Appellants’ lone surviving witness (PW1) demonstrating how many of the Form EC8As were unsigned, unstamped or undated. Also, the Appellants failed to tender the BVAS to show how many of the registered voters were accredited to vote, and prove their allegation of over-voting. The Court also held that the Appellants failed to prove their allegations of multiple thumb printing and ballot box stuffing, which are allegations of crime, beyond reasonable doubt. Relying on Anyanwu v PDP (2020) 3 NWLR (Pt. 1710) 170 B-C, the Apex Court held that the lone testimony of PW1 and the documents dumped on the Tribunal, were inadequate to discharge the burden of proof on the Appellants.

Appeal Dismissed.

Representation

Ahmed Raji, SAN with others for the Appellants.

&.

Omotayo Olatubosun with others for the 1st Respondent.

Adebayo Badmus with others for the 2nd Respondent.

Dr Muiz Banire, SAN with others for the 3rd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin & Co.)