by Kenneth Atavti
The Abuja Division of the Court of Appeal has earned the unenviable record of churning out the most conflicting of judgments in the course of the election disputes arising from the 2015 election. Worse hit by this manipulation of the Electoral Act and the constitution is Rivers State.
Perhaps, the Chief Justice of Nigeria, CJN, Justice Mahmud Mohammed had the embarrassing judgments on Rivers State elections by the Court of Appeal in mind when he declared: “As your lordships will agree, where an aggrieved person perceives, whether rightly or wrongly, that they will not receive justice, such a situation can indeed bode ill for the community in which he lives and can lead to acrimony and anarchy.
“We must not ignore the negative perception that is occasioned by conflicting judgments delivered at various divisions of the Court of Appeal.”
Elementary jurisprudence suggests that one of the hallmarks of a just and properly-functioning legal system is the certainty and predictability of laws.
In other words, the settled position of the law, applied to certain similar or related facts, must necessarily be seen to be consistent and in tandem with previously decided cases.
This is the origin of the famed concept of stare decisis et non quieta movere- to stand by things decided, and not to disturb settled points.
Curiously, recent decisions of the courts, and particularly the Court of Appeal, in election petitions have revealed an alarming lack of consistency (even in the face of similar facts and applicable legal principles), a barefaced contempt of the binding decisions of the Supreme Court on settled issues and law and a general breakdown of all known and acceptable benchmarks of certainty and predictability.
Nowhere has this inconsistency been as overt as the case of election petitions concerning Rivers State- where the Court of Appeal has demonstrated an unnerving disdain for established legal principles which have been affirmed in an inexhaustible number of decisions of the Supreme Court.
Some of these contradictions and outright departure from the law are highlighted as follows:
The decisions of the Supreme Court and the Court of Appeal on :
the status of the Voters’ Register in proving allegations of over-voting vis-à-vis the Card Reader Machine; and
The effect of dumping documents on a Tribunal
On 11th December, 2015, the Court of Appeal, Kaduna Division in POLYCARP DANLADI G. v. NASIR AHMED EL-RUFAI CA/K/EPT/GOV/15/2015 at page 35- :
“Against the backdrop of the foregoing salient provisions of paragraph 25 of the Guidelines For Election Officers, 2015, it is obvious, contrary to the postulation of the Appellant, that the voter Register still remains to be a veritable and indispensable documentary evidence of (i) the total number of registered voters; and (ii) the total number of accredited voters. Thus, it behoves the presiding officer to compare the number of votes verified by the Card Reader with the number , checked in the register of voters. And that it is only after making such a comparison between the Card Reader and the Voters Register, that the presiding officer should proceed to-
“enter the figures (of the votes cast) into the appropriate Forms EC8A/EC8A (VP) Series.”
See Paragraph 25 steps 6 and 7 of the Guidelines For Election Officials, 2015 (supra).
The Appeal Court added: “In the instant case, the Appellants futile attempt to highlight the distinction in incidence of over voting vis-à-vis the 2007, 2011 and 2015 Election Guidelines (Manuals) issued by the 3rd Respondent, without the Voters Register, is to say the least misconceived.”
The Supreme Court IN MAHMUD ALIYU SHINKAFI & 1 OR v. ADULAZEEZ ABUBAKAR YARI & 2 ORS; SC.907/2015 delivered on 8th January 2016, pages 29-33 declared:
“The Learned Senior Counsel for the Appellants at page 28 of their brief of argument agrees that the above steps were necessary in order to prove over-voting. However, the Learned Silk opines that with the introduction of the Card Reader Machines, it would no longer be necessary to tender the voters’ register and other steps set out earlier.
“He went on to say that Haruna v Modibbo (supra), Kalgo v Kalgo (supra), Iniama v Akpabio (supra) and Audu v INEC No. 2 (supra) are no more good law. My view on this is that a principle of law that is well established cannot be abolished simply because an Appellant failed to prove his case in accordance with those principles.
“My understanding of the function of the Card Reader Machine is to authenticate the owner of a voter’s card and to prevent multi-voting by a voter. I am not aware that the Card Reader Machine has replaced the voter’s register or taken the place of statement of result in appropriate forms. As it stands, it appears that the Appellants did not lead any evidence to prove over-voting. The findings of the court below on the issue can be found on page 1127 of the record as follows:
“To prove over-voting, the Appellants, the Appellants relied on the evidence of DW1, in cross-examination, Exhibit I (Form EC8E- Declaration of Result Form), Exhibits 4 (certified true copy of list of accredited voters) and Exhibit A4. These tended to show generally over-voting. Exhibit I was tendered from the Bar. Neither the PW1 nor the DW1 made the document. This also applied to Exhibits A4 and 4 which were not made by the DW1 who read the documents and concluded there was over-voting. No probative values could be placed on these documents and the evidence of DW1. See Belgore v. Ahmed (supra) and Buhari v Obasanjo (supra) at 177 and 182 where Uwais, CJN, held that INEC results from polling units tendered through a witness who did not make them were not reliable. In Haruna v Modibbo (supra) 544-545, it was held by this court that tendering of Form EC8A without the testimony of its maker or clear reasons for his absence is valueless. The evidence of PW1 and DW1 on Exhibits 1,4 and A4 which were not made by them is valueless to prove over-voting.”
“From the findings above, I agree with the court below that the Appellants failed woefully to prove over-voting in accordance with the principles laid down by law. The reliance on the evidence of DW1, through a document he did not make has not made any difference.
“There is no doubt that a Petitioner is entitled to contend that an election or return in an election be invalidated by reason of corrupt practices or non-compliance with the provisions of the Electoral Act. For a Petitioner to succeed on this ground, he has to prove-
That the corrupt practice or non-compliance took place;
That the corrupt practice or non-compliance substantially affected the result of the election…
There is need for a Petitioner who alleges over-voting to lead concrete evidence to show that there was indeed over-voting and that it inured to the winner of the contest. Without doubt, over-voting in an election can be #in favour of either the Appellant, the Respondents or other contestants who participated and lost out at the election but are not parties to the Petition. Therefore, the onus is on the Petitioner to show that the over-voting was in favour of the Respondent and that it was as a result of the over-voting that the 1st Respondent won the election. This is why the law requires the Petitioner to lead evidence right from the polling unit in order to show that the alleged over-voting was solely to the advantage of the Respondent.” (Emphasis supplied)
Surprisingly, against the grain of the direct decision of the Supreme Court in SHINKAFI’s case (supra), the decision of the Court of Appeal itself in EL-RUFAI’s case, and a host of other cases, the same Court of Appeal (Abuja Division) in WIKE EZENWO NYESOM & 1 OR v. HON. (DR.) DAKUKU ADOL PETERSIDE & 3 ORS (supra) at page 68 completely discountenanced the failure of the Petitioners to tender and demonstrate, through the Voters’ Register, how the votes ascribed to the winner of the election were false, and instead proceeded to rely completely on Card Reader Reports (which were merely dumped on the Tribunal) by holding that:
“I am of the view that the documents identified under this issue and tagged documentary hearsay are admissible and could be tendered from the Bar they being public documents.
The pre-requisite for admissibility of documentary evidence is that it must be pleaded and relevant to render it admissible..
I have examined the exhibits. They are all public documents properly certified and are from proper custody in accordance with sections 102 and 104 of the Evidence Act 2011 and they enjoy presumption of correctness, authenticity and regularity accorded them under sections 104, 105, 146, 167 and 168 of the Evidence Act.”
On where burden of proof lies where allegations of election malpractices are made;
Court of Appeal, Ibadan Division in ACCORD PARTY v SENATOR ABIOLA ADEYEMI AJIMOBI & 3 ORS CA/ IB/EPT/GOV/31A/2015 at pages 49-54 (delivered on 17th December, 2015):
“Now, the Petitioners complaint are centered on various acts such as over-voting, ballot stuffing, multiple voting, indiscriminate removal of ballot papers assigned to polling units from their stumps, ballot boxes snatching, allocation of votes, etc, which the Appellant state are acts of electoral irregularities and non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual and Guidelines for the conduct of the election. It is now settled by statute and case law, that the burden of proof lies on the party who wants the court to give judgment in his favour, in respect of any legal right or liability depend (sic) on the existence of facts which he asserts to exist, to prove the existence of those facts which he asserts.
“This is so because, it is that party who asserts the existence of facts, who would fail if no evidence at all were given on either side. That is the legal ultimate burden which is enshrined in Sections 131(1) and (2), and 132 of the Evidence Act, 2011. Thought the nature of the claim in this appeal is an election petition, it has been settled in plethora of cases such as Fayemi v. Oni (2010) 17 NWLR (Pt. 1222) p. 326 at 385 andBuhari v. INEC (2008) 19 NWLR (Pt. 1120) p.246, that election petitions, though sui generis, are in the nature of a civil claim.
See also Hon. Julius Oyebanji Akinremi v. Mr. Popoola Binuyo & Ors (2010) LPELR-9150 (CA) per Kekere-Ekun, CA (as he then was), Ezechugbo v. Gov. Anambra State (1999) 9 NLWR (Pt. 619) p.386 ad INEC v. A.C. (2009) All FWLR (pt. 480) p. 732 at 784. Thus, in the case of Senator ChrisAdghije v. Hon. Nkechi Nviaogu & Ors (2010) LPELR-4941 (CA), Ogunwumiju, JCA said:
“Thus, in election petition matters, the onus of proof of the grounds of the petition is fixed at the end of the pleadings on the Petitioner who kick starts the process. Thereafter the burden of proof shifts as the evidence preponderates.”
That burden (ultimate burden) does not shift because, it is that party who claims the relief in the Petition, that has the onus probandi, and therefore, the Appellant in this case, had the burden, as Petitioner, of proving the affirmative content of the Petition. The position was put beyond controversy by the Supreme Court in the case of Buhari v. INEC (supra) at p.350 paragraphs D-E, as follows:
“A Petitioner who files a Petition under Section 145(1) of the Electoral Act has the burden to prove the Ground or Grounds. This is because he is the party alleging the Grounds and he has a duty to prove the affirmative. He is the party who would lose if no evidence is given on the Grounds. If the Petitioner does not prove his case under Section 145(1) of the Act, the action fails.”
A careful perusal of the reliefs sought by the Appellant in the Petition and particularly reliefs (i), (ii), (iii), (iv) and (v), which are the principal and substantive reliefs sought, would show that they are declaratory in nature. That being so, like in all actions where declaratory reliefs are sought, the burden of proof is always on the Plaintiff or Petitioner, who seeks the declaratory relief.
In doing so, he must succeed on the strength of his own case and not due to the weakness of the defence; not even admissions on the part of the Defendant (Respondent) would relief (sic) him of the burden of leading credible evidence to prove his claim.
He may however, take advantage of any piece of evidence in the Respondents case which supports him. Thus, Fabiyi, JSC in the case of INEC v. Atuma & Ors (2013) 11 NWLR (Pt. 1366) p.494 at 521, said:
“It has been stated in clear terms that the burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence. A court does not grant declaration of right either in default or admission without taking evidence and being satisfied that the evidence led is credible.”
The law as relates to election matters was lucidly enunciated by Mohammed, J.S.C (as he then was) in Senator Julius A. Ucha & Anor v. Chief Martin N. Elechi & Ors (2012) 13 NWLR (Pt. 1317) p.330 at 365 as follows:
“The Appellants have also laid a lot of emphasis on the requirement of minimal proof in their Petition because of the failure of the Respondents to call relevant evidence in support of the case as found by the trial Tribunal.
The Appellants seemed to have forgotten that having regard to the nature of the reliefs sought by them in their Petition which are declaratory in nature, the law is indeed well settled that in such claims for declaratory reliefs which are in fact the backbone in all election petitions, the onus remains on the Petitioners to prove and establish their claim on their own evidence without relying on the weakness of the case of the Respondent.
In other words, the Petitioners must satisfy the election Petition Tribunal upon credible evidence which ought to reasonably be believed and which, if found established, entitles the Petitioners to the declaration sought.”
By the above stated principles therefore, the law places the burden of proof on the Plaintiff or Petitioners, as in this case, to prove their case by credible evidence, whether or not the Respondents call evidence. It therefore means that the relief of the Petitioner/Appellant cannot be granted without their calling credible evidence. The duty of the trial court or tribunal is to ascertain whether the Petitioner has by the evidence adduced by him, discharged the onus of proof cast on him by law.
The trial court determines whether or not the Petitioner has led credible evidence which entitles him to the relief sought, by embarking on the process of assessment and evaluation of the evidence led. It is therefore the primary duty of the tribunal to evaluate the evidence adduced before it and to ascribe probative value to such evidence.
In election disputes, the primary aim of evaluation of the evidence is to enable the tribunal see, whether from the evidence adduced the election was conducted in substantial compliance with the Constitution and the Electoral Act, including the Manual and Guidelines for the conduct of the election. In the evaluation of the evidence, the tribunal will consider the circumstances of the case, including the state of the pleadings in the Petition, especially the credibility of the Petitioner’s position and the nature and substance of the complaints of the Petitioner, the attitude of the functionaries charged with the conduct of the election and whether the omissions complained of by the Petitioner, even if proved substantially affected the conduct of the election. See Chime v. Ezea (2009) 2 NWLR (pt.1125) p.263 at 354. This court will only interfere where it finds from the printed records that the trial tribunal failed to properly evaluate the evidence presented before it and which finding led to a perverse decision or miscarriage of justice. Such a perverse decision may occur where the trial tribunal took into account matters which it ought not to have taken into account or where it shut its eyes to cogent facts before it.
I must reiterate at this juncture that, the burden was on the Appellant to lead credible evidence in proof of the various acts of electoral malpractices complained of.
The duty was therefore on the tribunal, in the exercise of its primary duty to evaluate such evidence. It is only when the tribunal found that the Appellant had established a prima facie case by credible evidence, that the tribunal could consider the Respondents’ case. The legal position was clearly settled by the Supreme Court in the case of Sanusi v. Ameyogun (1992) 4 NWLR (pt.237) p.527 at 547 as follows:
“The point was again emphasized by this court in the case of Duni v. Nwosu
(1989) 4 NWLR (pt. 113) p.24. the court explained that the proper procedure is that the trial Judge ought always to start by considering the evidence led by the Plaintiffs to see whether he has led evidence on all the material issues he needs to prove…If he has not so led evidence, or if the evidence led by him is so manifestly unsatisfactory, then he has not made out what is usually referred to as prima facie case, in which case the trial Judge does not have to consider the case of the Defendant at all.”
Also see the decision of the Court of Appeal (Makurdi Division) in the Unreported case of RT. HON. PRINCE TERHEMEN TARZOOR v. ORTOM SAMUEL IORAER & 2 ORS ; APPEAL NO.: CA/MK/EP/GOV./20/2015 at pages 37-38, per the Hon. Justice Garba, J.C.A, where the law on the placing of the burden of proof in election petitions was enunciated as follows:
“The complaint of the Appellant under this issue is that the Tribunal had misplaced the burden of proof on him when it said that he must win his case on the strength of his own case and not on the weakness of the Respondents’ cases or defence, was on the assertion made that the 2nd Respondent did not conduct a primary election at all for the nomination of the 1st Respondent as a candidate to contest the election in question.
The Appellant calls and labels the said assertion or allegation, as a negative assertion which he has no duty to prove under the law. However, as demonstrated earlier, an assertion or allegation, can be either negative or positive, but once made by a party in a case, he owes and bears the legal burden of proof, which is fixed and static, to prove same if he expects a court or tribunal to, on its basis, make a declaration of right he claims in the case in his favour. It is a clear misconception, with due respect to counsel, to argue that the Respondents who had denied the assertion made by the petitioner as the vital and crucial point and fulcrum of his case, had the legal burden of proof of such an allegation against them merely on the basis of their denial of the assertion or allegation.” (Emphasis supplied)
Conversely, against the mandatory injunction of the Supreme Court and the decisions of the Court of Appeal itself to the effect that the burden of proving allegations of malpractice and irregularities rests with the Petitioner, even where the Respondents admit the allegations, in WIKE EZENWO NYESOM & 1 OR v. HON. (DR.) DAKUKU ADOL PETERSIDE & 3 ORS (supra), the Court of Appeal held (at page 110 of the Judgment) placed the entire burden of proving that the election was conducted in substantial compliance with the Electoral Act on the Respondents in the Petition, and proceeded to grant the reliefs of the Petitioners solely on the purported weakness of the case presented by INEC and the Appellant (Gov. Nyesom Wike), thus shifting the fixed burden of proof onto them. Hear the Court of Appeal:
“The pieces of oral and documentary evidence given by INEC officials are no doubt admission against the interest of INEC and they strengthened the case postulated in the petition by 1st and 2nd Respondents to this appeal. With all the pieces of damaging evidence against the conduct of the election in Rivers State on 11th and 12th April 2015 all falling from the lips of senior INEC Officials who testified and tendered documents in support of petitioners’ case, the findings and conclusion of the tribunal that the petitioners proved their case as required by law and that a fresh Governorship election should be conducted in Rivers State by INEC cannot be faulted.”
The Court of Appeal was bound by the decisions of the Supreme Court on the burden of proof in elections petitions. On the superiority of Supreme Court decisions over those of the Court of Appeal in election petition matters see the decision of the Court of Appeal (Lagos Division) itself in ALL PROGRESSIVES CONGRESS v. MR. JOSEPH OLUJIMI KOLAWOLE AGBAJE & 4 ORS; CA/L/EP/GOV/751A/2015 at pages 19-20 (delivered on 26th August 2015):
“The cross-appellant, in an avowed bid to earn victory on the issue, devoted paragraphs 3.33-3.47 at pages 17-22 of his brief of argument to castigating the decision in Wambai v. Donatus (supra). Alas, this is the forum non competens for these unwarranted strictures passed on the decision. The reason is not far-fetched.
The decision is that of the Supreme Court. This court, being at the lower rung of the hierarchical ladder, even though penultimate, lacks the vires to engage in the reversal of the decision. To do so will constitute a judicial sacrilege of the doctrine of stare decisis et non quieta movere- to stand by things decided, and not to disturb settled points. No wonder, the apex court has labelled such untoward judicial exercise as a constitutional abomination, see Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347. Put starkly, I dishonor the inciting and enticing invitation of the cross-appellant to ignore the decision in Wambai v. Donatus on account of per incuriam. It iss only the Supreme Court that is imbued with the jurisdiction to do so.”
On whether the Card Reader Machines are contemplated by the Electoral Act and whether use of Card Readers can form part of grounds of an election petition which seeks the nullification of an election on grounds of malpractices and irregularities; the Court of Appeal in ALL PROGRESSIVES CONGRESS v. MR. JOSEPH OLUJIMI KOLAWOLE AGBAJE & 4 ORS (SUPRA) AT 22-24:
“I have given a clinical examination to the content of paragraph 13(b) adumbrated above. To my mind, it does not, in the least, fit into any of the grounds catalogued in the inviolate provision of section 138(1) of the Electoral Act. This is so even when the first and second cross-respondents, who factored it in as a ground, reap/harness from the benefit of choosing their words as magnanimously allowed by Ojukwu v. Yar’adua (supra). The paragraph displays a vitriolic attack on the irregularities germinating from the improper or non-use of the smart card readers in the polling units chronicled at its bottom…It endeavours to introduce the defects in the use of smart card readers.
The evolution of the concept of smart card readers is a familiar one. It came to being during the last general election held in March and April, 2015 in Nigeria. On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election. Specifically, it is aimed to concretise our fragile process of accreditation- the keystone of any suffrage.
The concept, owing to its recent invention by INEC, a non-legislative body, traces its paternity to the Manual for Election Officials, 2015: Chapter 2, pages 35-42. Put the other way round, the extant Electoral Act, 2010, as amended, which predates the concept, is not its parent or progenitor. Since it is not the progeny of the Electoral Act, a ground in a petition fronting it as a ground to challenge any election does not have its blessing, nay section 138(1) of it. Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election, it does not qualify as one.”
Curiously, see the position of the same Court of Appeal (Abuja Division) in WIKE EZENWO NYESOM v. HON. DR. DAKUKU ADOL PETERSIDE & 3 ORS; CA/A/EPT/659/2015 at pages 92-10:
“The Independent National Electoral can with or without the making of the Manual for Election Officials 2015 and Approved Guidelines and Regulations for the conduct of 2015 elections introduce and make use of the Smart Card Reader in the accreditation process.
Section 138(2) of the Electoral Act provides:
“An act or omission which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election But which is not contrary to the provisions of this Act sha`ll not of itself be a ground for questioning the election.”
Is Rivers State the “guinea pig” for an experiment in changing well-settled doctrines and principles of law on how malpractices and irregularities are to be proved?
Has the position of the law settled by the Supreme Court in CHIME v. EZEA (supra) and UCHA v. ELECHI (supra) respectively, on the need to prove allegations of malpractices and irregularities on a “polling unit by polling unit basis” now been amended to require only proof at the Local Government or State level?
The Petitioners called only THREE registered Voters in proof of their Petition in a Constituency of 4442 polling units.
Will the Supreme Court shut its eyes to the surreptitious attempt by the Court of Appeal to carve out a new (and markedly distinct) body of laws for election petitions, despite the myriad of pronouncements by the Supreme Court of those issues?
What manner of election petition jurisprudence is being developed, in view of the prevalent confusion in the law today?
Kenneth Atavti is a public affairs analyst.
The opinions expressed in this article are solely those of the author.
