Legalpedia Citation: (2023-12) Legalpedia 04706 (CA)

In the Court of Appeal

Holden At Lagos

Tue Dec 5, 2023

Suit Number: CA/ABJ/EP/HR/RV/146/2023

CORAM

Jimi Olukayode Bada Justice, Court of Appeal

Mohammed Danjuma Justice, Court of Appeal

Paul Ahmed Bassi Justice, Court of Appeal

PARTIES

1. FRIDAY NUBARI NKE-EE
2. SOCIAL DEMOCRATIC PARTY (SDP)

APPELLANTS

1. DUNAMENE ROBINSON DEKOR
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 3rd Respondent (INEC) in this matter scheduled and conducted election into the office of Member of the House of Representative for the Khana/Gokana Federal Constituency seat of Rivers State on the 25th day of February, 2023 and a supplementary election on the 15th day of April, 2023 wherein the 1st Appellant contested as the candidate of the 2nd Appellant against the 1st Respondent who contested as the candidate of the 2nd Respondent, among other candidates for the same election.

​The 3rd Respondent announced and declared the 1st Respondent as winner of the election and returned him elected with 18,641 votes while the 1st Appellant came second with a score of 10,165 votes.

The Appellants, being dissatisfied with the conduct of the election, filed this petition before the Tribunal contending that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act and that the 1st Respondent was not duly elected by a majority of lawful votes cast at the House of Representatives election.

The trial Tribunal in its judgment dismissed the Appellants’ petition holding that the Appellants failed to prove the petition. The Appellants are unhappy with this finding hence the instant appeal.

 

HELD

Appeal dismissed

ISSUES

1. Whether in view of the case presented by the 1st and 2nd Respondents, the lower Court was right when it affirmed the return of the 1st Respondent as duly elected by majority of lawful votes cast in the election of 25th February and supplementary of 15th April, 2023?
2. Whether the trial Tribunal was right in holding that the Appellants failed to demonstrate the documents tendered to their case and dumped same on Tribunal?
3. Whether the failure of the Appellants to call the 619 polling units agents to give testimony at the Trial Tribunal was fatal to the Appellants case?

RATIONES DECIDENDI

DECLARATORY RELIEFS – DUTY OF A PARTY SEEKING DECLARATORY RELIEFS

In the case of NYESOM V. PETERSIDE (2016) 7 NWLR (Part 1512) 452 at 535 (Para. F-G), the Supreme Court held:

“Both the Tribunal and the Court below made much of the fact that witnesses called by the Appellant were discredited under cross-examination and therefore their evidence was unreliable, which therefore gave further impetus to the case of the 1st and 2nd Respondents. It will be recalled that the 1st and 2nd Respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted, even on admission”.

It is the law that there is no burden on the Respondents to lead evidence if a petitioner fails to establish his case based on his own evidence. See the case of ANDREW & ANOR V. INEC & ORS (2017) LPELR-48518 (SC).

It is after the Appellants has discharged the burden on him that the consideration of the evidence led by the defence becomes necessary. Therefore, if the petitioner failed to present credible witnesses in support of the allegations contained in the petition, the petition was bound to fail and the Tribunal would be left with no option but dismiss the petition. – Per J. O. Bada, JCA

PETITIONERS – DUTY OF PETITIONERS ALLEGING IRREGULARITIES, MALPRACTICES, OVER-VOTING AND VOTERS DISENFRANCHISEMENT

The Appellants insisted that they proved their case at the trial Tribunal, but neither the voters Register nor the record of PVCs collected was tendered in the number of registered voters and those who collected their PVCs in the alleged polling units who were allegedly disenfranchised. It is of course based on these vital documents that the Court can determine the number of those allegedly disenfranchised and also determine the margin of lead.

Further, I agree with the trial Tribunal that the Appellant was bound to call those disenfranchised and it is trite that the comprehensive voters register for the constituency must also be tendered and credible evidence led on them as to what transpired at each polling unit complained of.

For the Appellants to establish the allegation of irregularities, malpractices such as over-voting, non-holding of elections, alterations, inflation of results, etc. as contained in the petition, it is the testimony of persons who were present at the polling unit that is required and not those of the collation agents who were not present at the polling unit. – Per J. O. Bada, JCA

PETITIONER – WHERE A PETITIONER CHALLENGES AN ELECTION ON THE GROUND THAT A CANDIDATE DID NOT SCORE A MAJORITY OF LAWFUL VOTES CAST AT THE ELECTION

It is trite law that where a petitioner challenges an election on the ground that a candidate did not score a majority of the lawful votes cast at the election, the petitioner is obliged to plead and lead credible evidence showing the existence of two sets of results emanating from the same election. This is to enable the Court to compare and contrast the figures presented in order to arrive at a decision. See the case of MAIRIGA V. AL-KALI (2019) LPELR 48486 (CA).

The Appellants ought to have pleaded and proved the number of votes cast at the various polling units, the votes allegedly illegally credited to the 1st Respondent, the votes which ought to have been deducted from that of the 1st Respondent in order to determine how same affected the result of the election. See the case of NADABO V. DUBAI (SUPRA) UCHECHUKWU V. OKPALAKE (SUPRA), BUHARI V. OBASANJO (SUPRA).

​I hold the view that the Appellants having failed to call any witness from the polling units, they did not seriously challenge the conduct of the election in question. See the case of RINI & ANOR VS. MARADUN & ORS (SUPRA). – Per J. O. Bada, JCA

BURDEN OF PROOF – BURDEN AND STANDARD OF PROOF IN AN ELECTION PETITION

As stated earlier, a petitioner always has the burden of proof through credible evidence in order to succeed in an election petition where he alleges that there was no substantial compliance with Electoral Act or that the alleged irregularities have substantially affected the election of the Respondent and that the alleged irregularities were spear-headed by or linked with the Respondent or his authorized agents. In the case of KINGIBE V. ISA MAINA & ORS (2004) ALL FWLR Pt. 191, 1555, at 1588, the Court has this to say:

“It is clear from the above that whether the complaint be on irregularities, unlawful votes or non-compliance, it must be tied to the effect of such irregularities or non-compliance on the result of the election. This the petitioner is unable to tie the irregularities, malpractice or unlawful votes to its effect on the result of the election, the petition is bound to fail”.

It is evident that in the instant case, the Appellants failed to establish, that the alleged irregularities, malpractice or non-compliance with the Electoral Act had impacted on the election in issue. That is the only way to rebut the presumption of validity of the conduct of an election. See the case of BUHARI & 2 ORS VS. OBASANJO & 1 OTHER (2003) 16 NSCLN. – Per J. O. Bada, JCA

COURTS – CONDUCT OF THE COURT WHERE THE WITNESS CALLED CANNOT BE RIGHTLY CROSS-EXAMINED AS TO THE CONTENTS OF A DOCUMENT

The law is now settled that credence or probative value cannot be given to a document tendered by a witness who cannot be rightly cross-examined as to its contents. A person who did not make a document is not in a position to give evidence on it because the veracity, authenticity and credibility of the document cannot be tested through a person who has no nexus with the document. Only a maker of a document can tender and be cross-examined on same. Indeed, in the case of BUHARI V. INEC (2008) 18 NWLR (Pt. 1120) 246, 391-392, Paras. H-A, it was held that:

“Weight can hardly be attached to a document tendered in evidence by a witness who cannot or is not in a position to answer questions on the document. One such person the law identifies is the one who did not make the document. Such a person is adjudged in the eyes of the law as ignorant of the content of the document”. – Per J. O. Bada, JCA

EVIDENCE – WHETHER DOCUMENTARY EVIDENCE CAN SPEAK FOR ITSELF WITHOUT AN AID OR EXPLANATION RELATING ITS EXISTENCE

…documentary evidence, no matter its relevance, cannot on its own speak for itself without the aid of an explanation relating its existence. The validity and relevance of documents is done in open Court. Appellants did not link the said documents to the relevant aspects of their case by calling the appropriate witnesses. This did not serve the cause of the Appellants. See the case of LADOJA V. AJIMOBI (2016) 10 NWLR (Pt. 1519) 87 at 107. – Per J. O. Bada, JCA

COURTS – CONDUCT OF COURTS TO DOCUMENTS WHOSE WORTH IS NOT DEMONSTRATED THROUGH WITNESSES

The mere identification of the documents by the PW1-PW8 does not amount to linking the documents to aspect of the Appellants’ case. Consequently, I agree with the finding of the trial Tribunal that:

“Going forward, the petitioners and their witnesses failed to demonstrate the documents tendered to their case. The documents were dumped on the Tribunal by the petitioners without demonstrating their purport and worth to the case of the petitioners through the witnesses. It is not the duty of the Tribunal to embark on an independent enquiry to fix the documents tendered by the petitioners on the evidence led. They merely dumped the documents on the Tribunal, sending it on a voyage of discovery”.

But Courts and Tribunals do not embark on voyage of discovery. So, Appellants’ Exhibits remain dumped and have no evidential value. See the case of MAKINDE V. ADEKOLA (2022) 9 NWLR (PT. 1834) 13 AT 45-46 and APGA V. AL-MAKURA (2016) 5 NWLR (PT. 1505) 316 AT 369-390. – Per J. O. Bada, JCA

 

PETITIONERS – DUTY OF PETITIONERS ALLEGING NON-CONDUCT OF ELECTIONS AND ELECTORAL MALPRACTICES AT POLLING UNITS

There can be no doubt that elections are conducted at the polling units and not at the collation centres. It follows that to prove the non-holding or non-conduct of election and electoral malpractices in most polling units, it is the testimony of the polling unit agents or registered voters in the particular unit that is required and not those of collation agents who were not present at the polling units. – Per J. O. Bada, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Evidence Act, 2011
3. Electoral Act, 2022

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