CORAM

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THERESA N. ORJI-ABADUA JCA

MOHAMMED BABA IDRIS JCA

HANNATU LAJA-BALOGUN JCA

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PARTIES

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1. IBRAHIM ABDULNASIR

2. ALL PROGRESSIVES APPELLANTS CONGRESS (APC)

APPELLANTS 

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1. ADAMU ALIYU

2. PEOPLES DEMOCRACTIC PARTY (PDP) RESPONDENTS

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, ELECTION, EVIDENCE, INTERPRETATION, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellants as the Petitioners before the lower Tribunal, aggrieved by the declaration and return of the 1st Respondent (1st Respondent at trial Tribunal) as the winner of the Zamfara State House of Assembly election for Gummi II State Constituency filed a Petition claiming that the election was invalid by reason of non-compliance with the provisions of the Electoral Act 2022, the INEC Manual for Electoral Officials for the conduct of the 2023 General Elections, and the INEC Guidelines and that the 1st Respondent was not duly elected by majority of lawful votes cast at the election.

At the end of the trial, the Tribunal delivered its judgment dismissing the Petition. Dissatisfied with the said judgment the Appellants filed the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Whether the Tribunal below was right to have struck out ground 1 of the Petition on the ground that the said ground is, according to the Tribunal, “formulated outside the ambit of grounds specified in Section 134(1) of the Electoral Act 2022”?

2. Whether the Tribunal below was right when it failed to act on, consider or evaluate the unchallenged evidence in Exhibits 2a – g, 4, 5, 6, & 8 and its further failure to act on the challenged evidence of the PW1 – 12 and expunging the evidence of the P3, PW9 on the grounds of absence of jurat?

 

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RATIONES DECIDENDI

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STATUTE – DUTY OF PARTIES AND THE COURT TO ADHERE TO A PROCESS OR PROCEDURE LAID OUT IN A STATUTE

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…even though I agree with the Appellants that the word “OR” connotes that a ground of an election petition in line with Section 134(1)(b) can be that the election complained of was invalid by reason of corrupt practices or invalid by reason of non-compliance with the provisions of the Electoral Act, it is also trite that neither a party nor a court can properly expand the provisions of a statute by way of addition of words that are not provided therein for the purpose of achieving a particular objective. See the case of SDP VS. INEC (2023) 14 NWLR (1905) 499. Also, where a statute lays down a clear path, process and procedure for doing an act, that path and procedure must be followed to the letter. See the case of EZEANI VS. ONYERERI (2023) 9 NWLR (PT. 1889) 315. – Per M. B. Idris, JCA

 

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ELECTION – THE DUTY OF A PETITIONER ALLEGING THAT A RESPONDENT HAS NOT WON BY MAJORITY OF LAWFUL VOTES IN AN ELECTION

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When a petitioner alleges that a respondent has not won by majority of lawful votes in an election, as in this case, to succeed in his claim, the law enjoins the petitioner firstly to specifically plead the existence of two sets of results emanating from the election. Thereafter, the petitioner must adduce credible evidence that the respondent did not score the majority of lawful votes cast at the election. Secondly, the petitioner must plead and prove votes cast at the various polling units, the votes illegally credited to the declared winner, the votes which ought to have been deducted from the supposed winner in order to find out if it will affect the result of the election. In all, the best form of evidence to be led in prove of such allegation is those of the poling unit agents who witnessed the infractions at the various polling units. See the case of WADA VS. INEC (2022) 11 NWLR (PT. 1841) 293…

Again, the above authority shows clearly what the Petitioner needs to do to succeed in his case.

What the Petitioner needs to do are broken down as follows: 1. Plead the existence of two sets of results emanating from the election. 2. Adduce credible evidence that the Respondent did not score the majority of lawful votes cast at the election. 3. Plead and prove votes cast at the various polling units (a) The votes illegally accredited to the winner (b) The votes which ought to have been deducted from supposed winner in order to find out if it will affect the result of the election. 4. The best form of evidence to be led in proof is those of the polling agents who witnesses the infractions. – Per M. B. Idris, JCA

 

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BURDEN OF PROOF – BURDEN OF PROOF IN ELECTION PETITIONS

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Firstly, in an election petition, the burden of proof lies on the petitioner whose duty it is to adduce evidence for the purpose of tilting the scale of justice in his favour. In other words, where the petitioner alleges, and fails to satisfy the burden of proof, he will not be entitled to judgment in his favour. See the case of P.D.P. VS. INEC (2022) 18 NWLR (PT. 1863) P. 698 AT PARAS C – D. In the light of the above, it therefore follows that the burden lies heavily on the Petitioners to prove that they are entitled to the reliefs sought. – Per M. B. Idris, JCA

 

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EVIDENCE – EVIDENCE REQUIRED TO PROVE LACK OF ACCREDITATION, IMPROPER ACCREDITATION AND OVER VOTING

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It is trite that by virtue of Sections 47(1) and 51(2) of the Electoral Act, 2022, Regulations 14, 18, 19(b)(i – iv), (e)(i – iii) and 48(a) of the INEC Regulations and Guidelines for the Conduct of Elections 2022, the evidence required to prove non-accreditation, improper accreditation and over voting under the Electoral Act, 2022 are the Bimodal Voter Accreditation System (BVAS), the register of voters and the polling unit result in INEC Form EC8A. It is glaring from the above provisions of the Electoral Act and the INEC Regulations and Guidelines that the evidence required to prove that voting was allowed without accreditation or that there was improper accreditation are the register of voters, BVAS and the polling unit result in Form EC8A, and that the evidence required to prove that there was over voting ate the record of accredited voters in the BVAS. See the case of OYETOLA VS. INEC (2023) 11 NWLR (PT. 1894) 125. – Per M. B. Idris, JCA

 

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DOCUMENTS – WHERE THE ORIGINAL VERNACULAR VERSION OF A DOCUMENT IS NOT PRODUCED ALONG WITH THE ENGLISH TRANSLATION

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Thirdly, it is trite that where both the original vernacular version and the English translation of a document are not before the court, as in the instant appeal, the translated version is hearsay and therefore inadmissible. See the case of SOKOTO VS. INEC (2022) 3 NWLR (PT. 1818) 577… Where a witness testifies that he made his statement in vernacular (e.g. Hausa language) and that it was translated into English, it is necessary that both the Hausa and English versions of the said statement be before the court. – Per M. B. Idris, JCA

 

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ILLITERATE – MEANING OF ILLITERATE AND ILLITERATE JURAT

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Before I put a full stop to all the findings above, it is important to state again that where a party contests the legality or lawfulness of votes cast in an election and the subsequent result, it is necessary that he tenders in evidence, all necessary documents used at the election, calls witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The documents are among those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election, not those who picked the evidence from an eyewitness. They must be eye witnesses too. Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of the votes, wrong doings and irregularities which affected substantially the result of the election. The petitioner has a difficult though not impossible task. See the case of TAKORI VS. MATAWALLE (2020) 17 NWLR (PT. 1752) 165. – Per M. B. Idris, JCA

 

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ELECTION – DUTY OF A PARTY CONTESTING THE LEGALITY OF VOTES CAST IN AN ELECTION AND THE SUBSEQUENT RESULT

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Going further, an illiterate person is a person who is unable to read with understanding and to express his thoughts by writing in the language used in the document made or prepared on his behalf. See the case of OTITOJU VS. GOV. ONDO STATE (1994) 4 NWLR (PT. 340) 518. The Supreme Court in the case of DAJO VS. STATE (2019) 2 NWLR (PT. 1656) 281 has defined an illiterate jurat to be a certification added to an affidavit or deposition by a witness stating when and before what authority the deposition or affidavit was made and that the person affected by such deposition or affidavit, though an illiterate, has understood the meaning of the contents of such deposition. However, the apex court in the case of SUNDAY VS. FRN (2019) 4 NWLR (PT. 1662) 211 held that: “…an illiterate is defined as a person who is unable to read understand and to express his thoughts by writing in the language used in the document made or prepared on his behalf. An illiterate is a person who cannot read, understand and express his opinion by writing in the language which is used in writing it on his behalf. In other words, a person who is unable to read or write the language in which a particular document is written, but who canread or write in some other language, is not an illiterate within the meaning of the Illiterates Protection Act….” – Per M. B. Idris, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Electoral Act 2022

2. Interpretation Act Cap 123 Laws of the Federation

3. INEC Regulations and Guidelines for the Conduct of Elections 2022

 

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