JIMOH ABDULLAHI V THE STATE
March 8, 2025ALHAJI MOSHOOD ODUTOLA & ANOR V ADEMOLA ADENIRAN FIDIPOTE & ORS
March 8, 2025Legalpedia Citation: (2024-01) Legalpedia 62653 (SC)
In the Supreme Court of Nigeria
Thu Jan 25, 2024
Suit Number: SC.CV11932023
CORAM
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice
Uwani Musa Abba Aji Justice
Mohammed Lawal Garba Justice
Ibrahim Mohammed Musa Saulawa Justice
Tijjani Abubakar Justice
PARTIES
COLE TONYE PATRICK
APPELLANTS
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. FUBARA SIMINALAYI
3. PEOPLE’S DEMOCRATIC PARTY (PDP)
RESPONDENTS
AREA(S) OF LAW
APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, INTERPRETATION, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
Governorship elections were held nationwide by the 1st Respondent on March 18, 2023. Both the Appellant and the 2nd Respondent had keenly contested the said election in Rivers State under the platforms of their respective political parties, the All People’s Congress (APC) and the People’s Democratic Party (PDP). At the end of that election, the 2nd Respondent was declared and returned as the winner with accredited 302,614 votes. The Appellant took a distant second position with 95,274 votes.
The Appellant and the party (APC) that sponsored him opted to file a petition at the Governorship Election Petition Tribunal, thereby challenging the declaration and return of the 2nd Respondent by the 1st Respondent as the winner of the said election. The Appellants claimed that the 2nd Respondent was at the time of the election not qualified to contest the election and for this reason the votes purportedly polled by or credited to the 2nd Respondent are invalid and or wasted votes. They sought the Court to declare that the 1st Petitioner having polled the majority of lawful votes cast and having fulfilled the requirements of Section 179(2)(a) and (b) of the Constitution of Federal Republic of Nigeria, 1999, as altered, in respect of the Rivers State Governorship Election held on the 18th March, 2023, is the winner of the election.
The Tribunal delivered its judgment dismissing the petition in its entirety.
On Appeal to the Court of Appeal, the Court below delivered its judgment and dismissed the appeal.
Aggrieved by the decision, the Appellant made the instant appeal.
HELD
Appeal dismissed
ISSUES
1. Whether the decision or evaluation of Exhibits GL, HB, KL, tendered by the Appellant in proof of the allegation of the non-qualification of the 2nd Respondent to contest the Rivers State Governorship election of 18th March 2023 by the Court of Appeal was not wrongful or erroneous and, therefore, occasioned a perverse judgment?
2. Whether the Court of Appeal was not in grave error when it failed to properly or correctly resolve the germane issue of the non-qualification of the 2nd Respondent to contest the election, by reason of his failure to comply with the clear provisions of Section 182(1)(g) of the 1999 Constitution?
3. Whether the Court of Appeal’s resolution of the failure of the 1st Respondent to comply with the mandatory provisions of Section 73(2) of the Electoral Act, 2022, which ought to have invalidated the Rivers State Governorship election held on 18th March 2023 was, in the circumstance, not perverse?
4. Having regard to the clear and unambiguous provisions of Section 137 of the Electoral Act, 2022 vis-a-vis the evidence led during trial, whether the Court of Appeal was right in holding that the Appellant’s complaints of over-voting, unsigned alterations, non-stamping and non-signing of results were not proved?
RATIONES DECIDENDI
ELECTION – REQUIREMENT FOR A CIVIL OR PUBLIC SERVANT TO RESIGN, WITHDRAW, OR RETIRE FROM EMPLOYMENT CERTAIN DAYS BEFORE THE DATE OF ELECTION
By virtue of the provisions of Section 182(1)(g) of the 1999 Constitution, as amended, a civil or public servant of the Federation or State is obligated to resign, withdraw or retire from the employment at least 30 days before the date of the election to the office of Governor of a State in Nigeria. – Per I. M. M. Saulawa, JSC
POLITICAL APPOINTEES – THE REQUIREMENT FOR POLITICAL APPOINTEES TO RESIGN BEFORE BECOMING VOTING DELEGATES OR CONTESTING PRIMARY ELECTIONS – DISQUALIFICATIONS FOR A PARTY CONTESTING FOR THE OFFICE OF THE GOVERNOR – MEANNING OF PUBLIC SERVICE
By virtue of the above provision of Section 84(12) of the Electoral Act, 2022, any person holding a political office, by whatever name or designation so called -as a minister, commissioner, special adviser, et al- must resign or relinquish the position to be eligible to participate in the political process, either as a candidate or delegate.
Undoubtedly, Section 84(12) of the Electoral Act, 2022 (supra) specifically and unambiguously relates to political appointees (of whatever class or distinction) who aspire to be voting delegates or contest primary elections for any elective position. Such political appointees are required to first and foremost resign their appointments before voting as a delegate or being voted for as an aspirant, in a primary election. Failure to comply with Section 84(12) (supra) renders the primary election null, void and of no effect whatsoever. See Section 84(13) of the Electoral Act which provides most emphatically
(13) Where a political party fails to comply with the provisions of this act in the conduct of primaries, its candidate for the election shall not be included in the election for the particular position in issue.
Contrariwise, the provisions of Section 182 specifically and unequivocally deals with disqualifications regarding the office of a Governor of a State. By virtue of Section 182(1)(g) of the Constitution (supra), a person shall be disqualified for an election into the office of a Governor of a State, if he is employed in either the civil or public service of the Federation or State and has not resigned, withdrawn or retired from that employment at least thirty (30) days prior to the date of the election. The provision of Section 182(1)(g) of the Constitution is clear and unambiguous, thus must be accorded the literal interpretation it so deserves.
The term public service is duly defined by Section 318(1) of the 1999 Constitution, to mean the service of the Federation in any conceivable capacity regarding the government of the Federation. From the foregoing definition under Section 318(1) of the Constitution (supra), there is no gain-saying the fact that political appointees referred to in Section 84 of the Electoral Act, 2022 are expressly excluded. – Per I. M. M. Saulawa, JSC
EJUSDEM GENERIS – MEANING OF EJUSDEM GENERIS AND THE APPLICATION OF THE RULE
Indeed, the law is fundamentally trite, that in a statutory provision, the express mention of a person or thing amounts to exclusion of another and vice versa. This proposition of law aptly finds credence in the equitable Latin maxim-Expressio uranius personal vel rei, est exclusion alterius. See MILITARY GOVERNOR OF ONDO STATE VS. ADEWUMI (1988) 3 NWLR (pt. 82) 280; AG BENDEL STATE VS. AIDEYAN (1989) 4 NWLR (pt. 118) 646.
This proposition of law aptly comes within the purview of the Latin doctrine – Ejusdem Generis – meaning, of the same kind or class. It’s trite, that ejusdem generis is a canon of constriction denoting that when a general word or phrase follows a list of specifics, the general word or phrase would be interpreted to include only items of the same class as those listed; for instance, in the phrase ‘horses, cattle, sheep, pig, goat or any other farm animals’ the sub-phrase or any other farm animals, would probably be taken to include only four legged, hoofed mammals typically found on farms. Thus, these would obviously exclude chickens, ducks, et al. Also termed Lord Tenderden’s Rule. See BLACK’S LAW DICTIONARY, 11th edition 2019 @ 654.
A typical example of the application of the ejusdem generis doctrine dates back to the 16th century – THE ARCHBISHOP OF CANTERBURY’S case, wherein the King’s Bench used the principle in interpreting a statute that contained a list of inferior means of conveyance, followed by the phrase or any other means. According to Tiersma,
Even though any other means” would seem to include all other types of conveyance, the Court limited this catch all phrase to other inferior means of conveyance, and held that it did not include a superior conveyance by an act of parliament. Obviously, these canons or maxims presuppose both a careful drafting of the text and a dose reading by the judges interpreting it.
See PETER M. TIERSMA PARCHMENT PAPER PIXELS LAW AND THE TECHNOLOGIES OF COMMUNICATIONS (2010) @ 152; BLACK’S LAW DICTIONARY (supra) @ 654.
In FRN VS. IBORI (2014) LPELR – 23214 (CA), I had the privilege of extensively postulating on the doctrine
The term Ejusdem Generis is often referred to in contradiction to the Latin doctrine of Expression unias est exclusion alterius a canon of construction denoting that to express (or include) one thing implies the expression of the other, or of the alternative. E.g. the rule that each citizen is entitled to vote, naturally, implies that non citizens are not entitled to vote…
The Ejusdem Generis Rule has been a subject of judicial pronouncement in a plethora of authorities. Most particularly, in the case of EHUWA VS. OSIE (2006) 18 NWLR (pt. 1012) 544, the Supreme Court held, inter alia, that the Ejusdem Generis rule simply means that in interpreting the provision of a statute, general words which follow and particular words of the same nature as themselves take their meaning from those specific words.
See also BUHARI VS. YUSUF (2003) 14 NWLR (pt. 841) 446 @ 536 paragraphs B-D. However, it’s pertinent to reiterate that the application of the Ejusdem Generis Rule is not as a matter of course, not automatic. The Court is required to exercise an extra caution most especially in view of the fact that it’s merely a presumption in the absence of other indications of the legislature.
Thus, in essence, there must be a distinct genus (category) before the Ejusdem Generis Rule can be invoked. See SPDC VS. FBIR (1996) 8 NWLR (pt. 466) 256 @ 290 paragraphs; ANDERSON VS. ANDERSON (1895) 1 QB 749 @ 753 & 755; CRATESON STATUTE LAW 7th edition @ 181.
Per Saulawa, JCA, (as then was) @ 56-57 paragraphs B-A.– Per I. M. M. Saulawa, JSC
PUBLIC SERVANTS – MEANING OF PUBLIC SERVANTS WITHIN THE CONTEXT OF S. 182 (1)(G) OF THE CONSTITUTION
Thus, it’s beyond any disputation, the fact that Section 318(1) of the 1999 Constitution (supra) has clearly and unambiguously listed those it classifies as persons in the public service domain, denotes that others omitted or excluded, such as chief of staff, civil commissioners et al are not to be reckoned with as public servants within the inherent contemplation and purview of Section 182(1)(g) of the Constitution (supra). See PPA VS. PDP (2009) LPELR-4865(CA) per Ariwoola, JCA (as then was). – Per I. M. M. Saulawa, JSC
RES JUDICATA – MEANING AND EFFECT OF RES JUDICATA – ELEMENTS OF RES JUDICATA – CONDITIONS FOR THE PLEA OF RES JUDICATA TO BE SUSTAINABLE
Invariably, the term res judicata is a 17th century Latin maxim which denotes a thing or issue adjudicated or settled by judicial decision. It’s an affirmative defence thereby barring the same parties from instigating a subsequent law suit regarding the same claim, or any other claim at all arising from the same transaction or series of transactions, that could have been but was not, raised in the first suit. The doctrine of res judicata is fundamentally predicated upon three elements (i) an earlier decision on the issue; (ii) a final judgment on the merits; and (iii) the involvement of the same parties, or parties in privy with the original parties. Also termed former adjudication; res adjudicata; claim preclusion; doctrine of res judicata. See BLACK’S LAW DICTIONARY, 11th Edition 2019 @ 1567.
I think, it was Alan Wright who not too long ago remarkably postulated on the fundamental doctrine of res-judicata
Res-judicata has been used in this section as a general term referring to all of the ways in which one judgment will have a binding effect on another. That usage is and doubtless will continue to be common but it lumps under a single name two quite different effects of judgments. The first is the effect of foreclosing any litigation of matters that never have been advanced in an earlier suit. The second is the effect of foreclosing relitigating matters that once been litigated and decided.
See CHARLES ALAN WRIGHT THE LAW OF FEDERAL COURTS, 5th Edition 1994 @ 722-723.
Simplistically, the term res judicatam means if a plaintiff seeks to relitigate a claim (an action) that has been adjudicated upon all over again, the defendant may answer it with a plea that the matter has already been decided. See ABIOLA & SONS BOTTLING COY LTD VS. SEVEN-UP BOTTLING COY LTD & ORS (2012) LPELR – 9279 (SC) per Rhodes Vivour, JSC @ 13 paragraphs C-D.
Interestingly, the fact that a new name was included in the subsequent suit would not render the doctrine of Res Judicatam inapplicable. See OJIAKO VS. OGWUEZE (1962) 1 All NLR 58; ONISANGO VS. AKINKUNMI (1955) 55 WRLR 39; ABIOLA & SONS BOTTLING COY LTD VS. SEVEN-UP BOTTLING COY LTD (supra), Per Rhodes Vivour, JSC @ 14 paragraphs E-F.
It ought to be reiterated, that for a plea of res judicata to be sustainable in any given case, the following three conditions must be satisfied
(a) The parties (or the privies thereof) must be the same in the subsequent as well as the previous case;
(b) The issues and subject matter in the subsequent as well as the previous suits must be the same; and
(c) The previous decision must have finally determined (decided) the issues between the respective parties.
See SALAMI AFOLABI VS. GOVERNOR OF OSUN STATE (2003) FWLR (pt. 175) 411 @ 417; OKE VS ATOLOYE (NO.2) (1986) 1 NWLR (pt. 15) 241. – Per I. M. M. Saulawa, JSC
IMPRIMATUR – MEANING AND HISTORY OF THE WORD IMPRIMATUR
Interestingly, the word imprimatur, literally means let it be printed in modern Latin. It is a derivative of the Latin term Imperimere, meaning to imprint or impress.
In the 1600s, the word imprimatur rapidly gained traction in the front matter of books accompanied by the name of an official authorising the printing of the book. As a noun, imprimatur denotes a canonical license issued by the Roman Catholic Church to print an ecclesiastical (religious) book; a person’s authoritative approval. See Dictionary Cambridge.org; Meriam-webster. Com, et al. – Per I. M. M. Saulawa, JSC
ELECTION – WHETHER AN ELECTION CONDUCTED WITHOUT PRIOR RECORDING IN ACCORDANCE WITH S.73 OF THE ELECTORAL ACT SHALL BE VALID
The start-off point is the Electoral Act, 2022 itself which provides in Section 73(2)
73(2) An election conducted at a polling unit without the prior recording in the form prescribed by the commission of the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials made available by the commission for the conduct of the election shall be invalid. – Per I. M. M. Saulawa, JSC
REMEDY – WHERE A PARTY DOES NOT ADOPT THE REMEDY PROVIDED BY THE STATUTE UNDER WHICH THE APPELLANT CLAIMED THE RIGHT TO CONTEST THE ELECTION AND FILE ELECTION PETITION
In this appeal, there is no indication or evidence shown that the appellant formerly reported the alleged serial insolence of the 1st Respondent (Resident Electoral Commissioner) to the Nigerian Police Force or other security agencies, to enable Section 74 of the Electoral Act, 2022 to be activated to his advantage. Having not adopted the remedy provided by the statute under which the appellant claimed the right to contest the election and file the election petition, but seeking a remedy in another statute different from the one under which the appellant claims the right sought to be enforced, is wrong approach… – Per I. M. M. Saulawa, JSC
S. 73 OF THE ELECTORAL ACT – WHETHER FAILURE TO COMPLY WITH RECORDINGS IN FORMS PRESCRIBED BY S. 73 (2) OF THE ELECTORAL ACT INVALIDATES AN ELECTION – DUTIES OF THE PRESIDING OFFICER CAPTURED IN S. 73 OF THE ELECTORAL ACT – BURDEN OF PROOF IN ELECTION MATTERS – GROUNDS ON WHICH AN ELECTION MAY BE QUESTIONED
As copiously alluded here-to-fore, the provision of Section 73(2) of the Electoral Act, 2022 (supra), is to the effect that an election concluded at a Polling Unit without prior recording in the forms prescribed by the Commission of the quantity, serial numbers and other particulars of result sheets, ballot papers and other sensitive electoral materials made available by the Commission for the conduct of the election, shall be invalid. Under Subsection (3) of Section 73 (supra), it is provided.
(3) A presiding officer who intentionally announced or signs any election result in violation of Subsection (2) commits an offence and is liable of conviction to a fine of N10,000,000 or imprisonment for a term of at least one year or both.
Undoubtedly, the provisions of Section 73(2) of the Electoral Act, 2022 (supra) have imposed an onerous responsibility upon the presiding officers of the INEC (1st Respondent) to ensure that every electoral form to be used at an election is properly filled. The duty imposed upon the presiding officer is mandatory.
However, the duty of establishing that the presiding officer or INEC has failed in discharging the mandatory duty imposed thereupon under Section 73(2) of the Electoral Act, 2022 (supra), rests squarely upon the Petitioner.
It’s a trite principle that the burden of proof in election matters lies squarely upon the petitioner to establish that not only were the declaration and return of the 2nd Respondent as the elected Governor of Rivers State invalidated by the reasons of non-compliance, but that the non-compliance with the Electoral Act, 2022 was so substantial as to affect the results credited thereto. See BUHARI VS. INEC (2008) NWLR (pt. 1078) 546; ABUBAKAR VS. INEC (2004) NWLR (pt. 854) 207; DOMA VS. INEC (2012) LPELR – 7822 (SC); BUHARI VS. OBASANJO (2005) 2 NWLR (pt. 910) 241.
It ought to be reiterated, for the avoidance of any lingering doubt, that mere failure to fill the electoral forms or fill them improperly would not be a sufficient ground capable of invalidating an election by virtue of Section 134(2) of the Electoral Act, 2022, which provides
134(1) An election may be questioned on any of the following grounds-
(a) A person whose election is questioned was at the time of the election, not qualified to contest the election;
(b) The election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; or
(c) The Respondent was not duly elected by majority of lawful votes cast at the election;
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of the officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election. – Per I. M. M. Saulawa, JSC
BURDEN OF PROOF – BURDEN OF PROOF IN ELECTION PETITIONS – WHETHER S. 137 OF THE ELECTORAL ACT 2022 AUTOMATICALLY SHIFTS THE BURDEN OF PROOF IN ALL ELECTION PETITION CASES
However, contrary to the Appellant’s submission, the recent decision of this Court in OYETOLA VS. INEC (supra) has not relieved (absolved) the Appellant of the onerous duty of proving his complaints of over-voting, non-stamping, unsigned alterations et al. For the avoidance of any lingering doubt, the decision of this Court in OYETOLA VS. INEC (supra) regarding the particular point is to the effect that
The above provisions (of Section 137 of the Electoral Act, 2022) have not absolved a petitioner of the need lead credible evidence to prove non-compliance. It states clearly that oral evidence may not be necessary. If and only if original or certified true copies manifestly disclose case, the Appellants have not or certified true copies of the non-compliance. In this demonstrated the original documents they want the Court to rely on. Given where such documents are tendered in evidence, it has to be shown that they manifestly disclose the non-compliance.
In the most recent case regarding the issue – ABUBAKAR SADIQUE BABA & ANOR VS. INEC & 2 ORS CACV11892023, judgment delivered on 12012024, this Court aptly held
In my considered view, the foregoing proposition of the law regarding Section 137 of the Electoral Act, 2022 (supra), unassailably represents the position of the apex Court on the point. It’s not controversial, at all, that the provisions of Section 137 of the Electoral Act, 2022 was drafted in clear, simple and unambiguous words. Thus, it behooves the Court to accord a liberally literal interpretation thereto; by giving the words their natural ordinary and literal meanings, devoid of any embellishment. See FBN PLC VS. MAIWADA (2013) 6 NWLR (pt. 1348) 444; KASSIM VS. ADESEMOWO (2021) 18 NWLR (pt. 1807) 07; AGUMA VS. APC (2021) 14 NWLR (pt. 1796) 351.
However, it ought to be reiterated, for the avoidance of any lingering doubt, that the provisions of Section 137 of the Electoral Act, 2022 (supra), is only applicable where the alleged non-compliance with the law is manifest from the original or certified true copies of the documents relied upon. See OYETOLA VS INEC (2003) LPELR – 60392 (SC)… ATIKU VS. INEC (2023), supra.
Per Saulawa, JSC @ 30-31.
Undoubtedly, the provision of Section 137 of the Electoral Act 2022 (supra) is one of the most cherishable innovations introduced in the electoral process vis-a-vis administration of justice in this country. This is alongside the use of technology in election process, which certainly would have the potential of enhancing the conduct of transparently credible electoral process. – Per I. M. M. Saulawa, JSC
MISCHIEF RULE – THE MEANING AND APPLICATION OF THE MISCHIEF RULE – THE TRITE DOCTRINE OF PURPOSIVISM
The provision of Section 137 of the Electoral Act, 2022 (supra) has been widely acclaimed as a ‘game changer’ in the election jurisprudence. The provision potentially dispenses with the need to adduce oral evidence to prove allegations of non-compliance with the Electoral Act, 2022, thereby effectively dealing with the problem (mischief) of undue delay.
The term Mischief Rule (1861), denotes that a statute should be construed (interpreted) by first identifying the mischief (problem) that the statute was designed to remedy, then adopting a construction that would suppress the problem and thereby advance the remedy. This is in accordance with the trite common law doctrine of purposivism. Under this methodology, the words of the text are expanded from their ordinary meaning so as to carry out the legislative purpose inherent therein
There is no need to first find the text ambiguous or uncertain before obtaining from other sources an understanding of the purpose of the statute. See UNIF. STATUTE & RULE CONSTRUCTION ACT (1995). According to Cross
Originally, however, the rule was to be applied only in cases of ambiguity that is, when the literal rule was in applicable.
See RUPERT CROSS PRECEDENT IN ENGLISH LAW (1961) @ 183.
Interestingly, the classic and most ancient authoritative decision regarding the trite fundamental doctrine of purposivism was the Locus classicus-HEYDEN’S case F8 3 REP 7A (1584) wherein it was held
For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered first, what was the common law before the making of the act. Second, what was the mischief and defect for which the common law did not provide. Third, what remedy the Parliament has resolved and appointed the cure the disease the commonwealth. And fourth, the true reason of the remedy; and then the offence of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief, and Pro Privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the act Pro bono Publico.
See HEYDEN’S case 3 REP. 7a (1584), copiously alluded to in BLACK’S LAW DICTIONARY, 11th edition 2019 @ 1595. – Per I. M. M. Saulawa, JSC
DOCUMENTS – WHERE DOCUMENTS ARE NOT DEMONSTRATED IN COURT AND THE MAKERS ARE NOT CALLED TO TESTIFY THEREUPON
In the course of the trial of the petition, the Appellant himself tendered various documents, albeit admitted he was not the maker thereof. His name was not printed or written on any of those documents.
There was not evidence on record to show how he came by them. Thus, he could not in any way be cross examined regarding their content. The same applies to the duplicate copies of Forms EC8As tendered by the Appellant’s Ward and Local Government collation Agents. The same equally applies to the certified True copies of the Forms EC8As tendered from the well of the Bar by the Appellant’s Counsel. The documents in question were neither demonstrated in Court nor were the makers thereof called to testify thereupon. They were simply dumped upon the hapless Tribunal. Thus, they are bereft of any evidential value. See ANDREW VS. INEC (2017) LPELR – 48518 (SC); LADOJA VS. AJIMOBI (2016) 10 NWLR (pt. 1519) 87. – Per I. M. M. Saulawa, JSC
HEARSAY EVIDENCE – WHETHER EVIDENCE OF WITNESSES OBTAINED THROUGH REPORTS RECEIVED BY THE WINTESSES AMOUNT TO HEARSAY EVIDENCE – MEANING OF HEARSAY EVIDENCE – WHETHER HEARSAY EVIDENCE IS ADMISSIBLE – CONDUCT OF COURTS TO HEARSAY EVIDENCE
Under cross examination, the 18 Appellant’s witnesses in question all stated that their testimonies derived from the information they received from Polling Unit Agents and the things they observed themselves. However, they admitted that they did not distinguish the things they observed themselves and the information they derived from the Polling unit Agents; they did not feel there was a need for them to do so. The witnesses also deposed in their respective testimonies, that they received comprehensive reports from unnamed persons. I agree with the 1st Respondent, that the fact that the witnesses testified having received reports is proof that they themselves were in no position to testify as to what actually transpired at the various Polling Units in question. The witnesses’ testimonies are irredeemably plagued by the vice of inadmissible hearsay evidence. See GUNDIRI VS. NYAKO (2013) All FWLR (pt. 098) 816, et al.
Invariably, the word hearsay (16th century) denotes a testimony given by a witness who, narrates not what he knows personally but what others have said. Thus, in essence, his testament is dependent solely on the supposed credibility of someone other than the witness. This kind of testimony is generally inadmissible under the rules of evidence. Also termed hearsay evidence.
Arguably, hearsay is generally considered as one of the most complex subjects in the entire law of evidence. According to Cross, Assertions of persons other than the witness who is testifying (including statements relied on as equivalent to assertions, although not primarily intended as such by their maker and conduct relied on as conduct equivalent to the actor’s assertion of any fact other than his contemporaneous statement of mind or physical sensation although not so intended by him are inadmissible as evidence of the truth of that which are asserted.
See RUPERT CROSS THE SCOPE OF THE RULE AGAINST HEARSAY.
The hearsay rule is predicated upon commonsense aimed at preventing a person from being unjustly accused or convicted of an offence which he did not commit. It was held by this Court in IJIOFOR VS. THE STATE (2001) LPELR – 1465 (SC)
It is a self-evident fact, malevolent people could manufacture such evidence as they would to falsely accused persons of offenses which they did not commit. By reason of this rule, the Courts are enjoined and indeed under a duty not to accept and or convict an accused person upon the testimony of witnesses who did not see, hear or perceive by any other sense or in any other manner, the facts given in their testimony at a criminal trial of an accused person, as in the instant case, or even in a civil case. This rule, except for such exceptions as the res gestae rule and certain recognized statutory exceptions, which we are not concerned with in this case, is mandatory for all Courts.
Per Ejiwunmi, JSC @ 18 paragraphs B-G; per Achike, JSC @ 43 paragraphs A-C. – Per I. M. M. Saulawa, JSC
DUE PROCESS – MEANING, HISTORY, AND IMPORTANCE OF THE CONCEPT OF DUE PROCESS
It’s trite, that of the foremost immutable legacies of the common law, is the doctrine of the due process of law. By the due process, I mean much the same as first used by the British Parliament in 1354, during the reign of King Edward
That no man of what estate or condition that he be, shad be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law.
See STATUTE OF 28 EDW. III, ch. 3.
The term due process was adopted much later in 1791 in the US Constitution (The Fifth Amendment) in consequence of president James Madison’s proposal
No person… shaft be deprived of life, liberty, or property, without due process.
The legendary Lord Denning, MR., was equally captivated, by the term
So, by ‘due process of law’, I mean when the measures authorized by the law so as to keep the streams of justice pure; to see that trials and inquiries are fairly conducted; that arrests and searches are property made; that lawful remedies are readily available, and that unnecessary delays are eliminated.
See LORD DENNING THE DUE PROCESS OF LAW, Oxford University Press, (Reprinted) 2012 @ V.
The fundamental objective of the 1999 Constitution (supra) is to promote 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. Thus, it is necessary to promote, strengthen and preserve the integrity of the Judiciary system nay the integrity of the judicial officers that are saddled with the responsibility of dispensing justice to the people without fear or favour, affection or ill-will.
Regardless of the importance of its duties, the Judiciary’s power is supported by neither the purse nor the sword. It neither commands armies nor collects taxes. Undoubtedly, its authority is solely predicated upon public perceptions of the propriety thereof – confidence in impartiality, fairness and ethical standards. As once aptly remarked by Franfurter, J
The Court’s authority – possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction.
See BARKER VS. CARR, 369 U.S 186, 267 (1962).
Judicial independence is fundamental for fair and just dispensation and administration of justice. Undoubtedly, it is the lifeblood of democratic constitutionalism. Without judicial independence, there can be no preservation of democratic values.
See BENREGAND VS. CANADA (1986) 2 SC R56, per Chief Justice Lamar, @ 70.
I have had a cause, not too long ago, to advocate for a harmonious working relationship between the three arms of Government – the Legislative, the Executive and the Judiciary, for the purpose of achieving the laudable objectives of promoting good government and welfare of all persons in our dear country, based on principles of Freedom, Equality and Justice. Indeed, that was in the case of ABUBAKAR ATIKU & ANOR VS. INEC SCCV9352023, delivered on 26102023, where I stated
What’s more, it’s trite that the separation of powers provided in Sections 4, 5 and 6 of the 1999 Constitution (supra) was not deliberately designed to place the three Arms of Government into separate water (tight) compartments. Far from it. Indeed, there ought to be a semblance of synergy and harmonious co-operation with one another in the best interest of our dear country. See GADI VS. MALE (supra) where in it was aptly echoed.
Paradoxically, for this great Nigerian Nation, the popularly acclaimed Giant of Africa, to move forward and achieve the laudable objectives contained in the Preamble of the 1999 Constitution, the Three Arms of Government must work assiduously and harmoniously in accordance with the dictates of the provisions of the constitution and the laws. Otherwise, it would remain underdeveloped, and a pariah nation. And the future of any nation whose Three Arms of Government fail to strictly be guided by the provisions and well-cherished tenets of the Constitution and the laws thereof could aptly be likened to the fate that had fallen the SWAN, the PIKE and the CRAYFISH, who failed to draw a cart due to lack of cooperation
The SWAN makes upward for a cloud.
The CRAYFISH falls behind, and the PIKE, the river uses.
To judge of each one’s merits, lies beyond my will;
I know, the cart remains there still!
See ABUBAKAR ATIKU & ANOR VS. INEC & 2 ORS. SCCV9352023; judgment delivered on 26102023;
GADI VS. MALE (2010) 7 NWLR (pt. 1193) per Saulawa, JCA (as then was); YANTABA VS. GOVERNOR OF KATSINA STATE (Appeal NO. SC.2442018, delivered on 07052021; per Saulawa, JSC @ 22-23. – Per I. M. M. Saulawa, JSC
CONCURRENT FINDINGS – CONDUCT OF APPELLATE COURTS TO CONCURRENT FINDINGS OF LOWER COURTS
The trite position of the law is that where there are concurrent findings or decisions of two lower Courts, a higher Court of appeal does not interfere with such findings or decisions except where they are shown to be based on insufficient evidence or they are punctuated by perversity as a result of wrong application of the substantive or procedural law. See Per MUHAMMAD, JSC, in KOPEK CONSTRUCTION LTD V. EKISOLA (2010) LPELR-1703(SC) (PP. 45-46 PARAS. D. – Per U. M. Abba-Aji, JSC
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. Evidence Act, 2011
4. US Constitution (The Fifth Amendment)
