CORAM

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CHIDI NWAOMA UWA

MOHAMMED BABA IDRIS

MUSLIM SULE HASSAN

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PARTIES

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JABIRU YUSUF YAU-YAU

APPELLANTS 

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1. ALL PROGRESSIVES CONGRESS

2. ABDULKADIR AHMAD ZAKKA

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC

RESPONDENTS 

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AREA(S) OF LAW

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

 

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SUMMARY OF FACTS

The Appellant’s claim is that he and the 2nd Respondent were both candidates for the APC primary elections to represent Batsari, Safana and Danmusa Federal Constituency for House of Representatives to contest in the 2023 general election. He alleged that the 2nd Respondent scored 50 votes but 5 of the votes were cast by proxy. He on the other hand scored 49 votes of the delegates physically present at the election. He is challenging the acceptance of votes by proxy.

The trial rules against him saying that he did not prove his allegations. He was dissatisfied by the decision hence the instant appeal.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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Whether the Appellant has established his case in accordance with the provisions of the Evidence Act, 2011, that the 2nd Respondent smuggled in 5 (five) ineligible delegates who voted in his favor to warrant the nullification of the primary election conducted on the 27th of May, 2022, by the 1st Respondent to elect its candidate for Safana/Batsari/Danmusa Federal Constituency?

 

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RATIONES DECIDENDI

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ISSUES – PROLIFERATION OF ISSUES

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cases are not won by proliferation of issues as done by the Appellant. – Per M. S. Hassan, JCA

 

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DOCUMENTS – AFFIDAVIT EVIDENCE – FOR THE CONTENT TO BE ACCEPTED AND USED BY COURT

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It is clear certainly that affidavit evidence as contained in originating summons is not in the class of hearsay evidence per se, but for the content of affidavit evidence to be accepted and used by a court, it must fulfill the requirement of the Evidence Act by way of being statement of facts which are within the exclusive knowledge of the maker of the oath. – Per M. S. Hassan, JCA

 

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VOTING BY PROXY – THE ONLY WAY THE APPELLANT WOULD HAVE ESTABLISHED IT

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Though he brought oaths deposed to at the high court, criminal allegations such as voting by proxy, with an allegation of smuggling in voters, can only be proved by calling oral evidence. Certainly, the affidavit evidence relied upon by the appellant would not help his case. The only way the appellant would have established his case was to file a writ and call those delegates to come and testify so that they can be cross-examined. Attaching their affidavit of voting by proxy, to my mind, does not establish the case of the appellant. – Per M. S. Hassan, JCA

 

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BURDEN OF PROOF – ALLEGATION OF CRIME IN A CIVIL CASE – BEYOND REASONABLE DOUBT

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I agree with the 1st and 2nd Respondents that the claims of the Appellant of smuggling of proxy votes are an allegation of crime in a civil case, and the appellant must prove the same beyond reasonable doubt. More so, his claims are equally declaratory, thereby making the onus on him one that he needs to establish on the strength of his case by cogent and variable evidence. – Per M. S. Hassan, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Electoral Act, 2022

2. All Progressives Congress (APC) Constitution

 

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