CORAM

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Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

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PARTIES

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1. JIBRIN MUHAMMAD BARDE

2. PEOPLES DEMOCRATIC PARTY (PDP)

APPELLANTS 

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1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

2. ALL PROGRESSIVES CONGRESS (APC)

3. YAHAYA MOHAMMED INUWA

RESPONDENTS 

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AREA(S) OF LAW

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

 

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SUMMARY OF FACTS

The 1st respondent herein conducted an election on 18th March 2023 into the office of Governor of Gombe State. The 1st appellant herein contested on the platform of the 2nd Appellant, Peoples Democratic Party (PDP), while the 3rd respondent contested on the platform of the 2nd respondent, All Progressives Congress (APC). At the conclusion of the election the 3rd respondent was declared the winner with a total of 342,821 votes against 233,131 votes scored by the 1st appellant. The 3rd respondent was accordingly returned as the Governor of Gombe State.

The appellants were dissatisfied with the declaration and return of the 3rd respondent and consequently filed a petition before the Governorship Election Tribunal sitting in Gombe on 6th April 2023. The grounds of the petition were that the 2nd respondent [now 3rd respondent] was, at the time of the election, not qualified to contest the election, the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022, and that the respondent was not duly elected by the majority of lawful votes cast at the election.

The Tribunal found no merit in the petition and dismissed same.

The appellants were dissatisfied with the judgment and appealed to the lower Court vide a Notice of Appeal. The Court of Appeal unanimously dismissed the appeal.

The appellants are still dissatisfied and have further appealed to this Court hence 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 Court below rightly concurred with the trial Tribunal that Ground A of the Appellants’ petition was a pre-election matter, amounted to abuse of Court process and liable to be struck out?

2. Whether the Court below was right when it endorsed the finding and conclusion of the trial Tribunal that paragraphs 33 – 35, 39 – 41, 46 – 45 and 72 – 113 of the Appellants’ reply to the 2nd respondent’s reply and paragraphs 33,34, 39- 41, 46-114 of the Appellants’ reply to the 3rd respondent’s reply to the Petition contravened Paragraph 16(1) of the First Schedule to the Electoral Act, 2022, rendering them liable to be struck out?

3. Whether the Court below was right when it aligned with the finding of the trial Tribunal that the Appellants’ documents at the trial were dumped without identification, relating to specific areas and demonstration thus rendering them worthless and of no probative value?

4. Whether the Court below rightly agreed with the trial Tribunal that the Appellants did not prove their case to be entitled to the reliefs sought in the Petition?

 

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RATIONES DECIDENDI

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COURTS – DUTY OF COURTS TO CONSIDER THE PROVISIONS OF A STATUTE AS A WHOLE AND NOT PIECEMEAL

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Before considering the authorities of this Court on the matter, it is necessary to restate the position of the law with regard to statutory interpretation. The Courts are always admonished to consider the provisions of a statute as a whole and not piecemeal in order to ascertain its meaning. Where the construction of a section is in issue all its sub sections and sub-paragraphs must be read together as they are complimentary to and explain the meaning and scope of the main section or paragraph. See:Mobil Oil (Nig) Plc Vs IAL 36 INC (2000) LPELR – 1883 (SC) @ 24 B – F; Nwobike Vs F. R. N. (2021) LPELR – 56670 (SC) @ 84 A – F; Bello & Ors. Vs A.G Oyo State (1986) LPELR – 764 (SC) @71 D – E; (1986) 5 NWLR (Pt-45) 828. – Per K. M. O. Kekere-Ekun, JSC

 

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FALSE INFORMATION – WHETHER THE ISSUE OF DISQUALIFICATION OF A CANDIDATE ON GROUNDS OF FALSE INFORMATION CONTAINED IN FORM CF001-CF009 IS A PRE-ELECTION MATTER

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It is quite evident that Section 29 of the Electoral Act, 2022 relates to pre-election matters concerning, primary election of political parties. It is clear, as rightly submitted by learned counsel for the 2nd respondent, that Section 29(6) follows on from Section 29(5), which permits an aspirant to complain about false information provided by a candidate in his affidavit of particulars. Sub-paragraphs (5) and (6) cannot be split into pre- and post-election matters.

Furthermore, the word “Court” used in sub-section (6) cannot be interpreted to mean Tribunal, as urged on behalf of the appellants, as sub-section (5) states clearly that the suit shall be filed at the Federal High Court.

​A full panel of this Court in APM Vs INEC (2022) 13 NWLR (Pt. 1846) 159 @ 181 -182 per Ogunwumiju, JSC affirmed our earlier decision in Atiku Abubakar Vs INEC (2020) 12 NWLR (Pt.1727) 37 to the effect that disqualification of a candidate on grounds of false information contained in his form CF001 or EC9 is a pre-election matter. We are bound by this decision. An alleged false statement as to the candidate’s work history does not fall within Section 182(1) (j) of the Constitution to warrant the disqualification of a candidate on that ground. – Per K. M. O. Kekere-Ekun, JSC

 

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APPELLANTS – CONDUCT OF APPELLANTS IN THE PRESENTATION OF THEIR CASE

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The appellants must be consistent in the presentation of their case and are estopped from approbating and reprobating. See: Ajide Vs Kelani (1985) LPELR – 302 (SC) @ 35 E – G; Jegede & Anor, Vs INEC (2021) LPELR – 55481 (SC) @ 30 A – B; Asaboro & Anor. Vs Pan Ocean Oil Corporation (Nig) Ltd, & Anor, (2017) LPELR – 41558 (SC) @ 11 A – C.  – Per K. M. O. Kekere-Ekun, JSC

 

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ABUSE OF COURT PROCESS – WHETHER INSTITUTING AN ACTION DURING THE PENDENCY OF ANOTHER CLAIMING THE SAME RELIEFS AMOUNTS TO ABUSE OF COURT PROCESS

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There is no doubt whatsoever that the filing of the petition seeking the disqualification of the 1st respondent during the pendency of Appeal No. SC/CV/431/2023 on the same subject matter amounted to an abuse of the Court’s process. See; Ukachukwu Vs PDP (2013) LPELR – 21894 (SC) @ 19 – 20 D – A, where His Lordship Onnoghen, JSC (later CJN) held inter alia:

“To institute an action during the pendency of another one claiming the same reliefs amounts to an abuse of Court process and it does not matter whether the matter is an appeal or not as long as the previous action has not been fully disposed of It is the subsequent action that is an abuse of the process of the Court.” – Per K. M. O. Kekere-Ekun, JSC

 

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PARAGRAPH 16 (1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2022 – THE PURPORT OF PARAGRAPH 16 (1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2022 – WHETHER THE PETITIONER IN THEIR REPLY CAN DEPART THEIR PETITION

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In the case of Ogboru Vs Okowa (2016) 11 NWLR (Pt, 1522) 84 @ 113 – 114 G – E, this Court, in elucidating the purport of Paragraph 16(1) of the First Schedule to the Electoral Act 2010, as amended, which is in pari materia with Paragraph 16(1) of the First Schedule to the Electoral Act, 2022, held after reproducing the provisions as follows:

“By the foregoing, the appellants as petitioners are not entitled to set up in their reply to the respondents’ replies to their petition, either a new cause of action, ground or new facts outside or inconsistent with their petition. Thus, their reply must not depart or contradict their petition and where it does, the tribunal will be justified on an application to strike out their reply in which the defect has occurred. In APC Vs PDP (supra) [(2015) 15 NWLR (Pt 1481) 1] a case counsel on both sides alluded to, this Court restated the principle thus: –

“…The appellant did not have the lee-way to aver new facts which ought to be in the original petition.

…The Court below was right in affirming the striking out of the said paragraph 13 which tried to overreach the 2nd respondent as no new facts should feature in a petitioner’s reply. See: Adepoju vs Awoduyilemi (1999) 5 NWLR (Pt. 603) 364 at 382. It is clear that restoring the paragraph would have occasioned a great miscarriage of justice on the 2nd respondent…”

(Italics mine for Emphasis)

See also: Sylva Vs INEC (2018) 18 NWLR (Pt.1651) 3p @ 352 F – H. – Per K. M. O. Kekere-Ekun, JSC

 

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CONCURRENT FINDINGS – CONDUCT OF APPELLATE COURTS TO CONCURRENT FINDINGS OF LOWER COURTS

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The issue as to whether paragraphs 33-35, 39-41, 46-45 and 72-113 of the Appellants’ Reply to the 2nd Respondent’s Reply and paragraphs 33, 34, 39 – 41, 46- 114 of the Appellants’ Reply to 3rd respondents Reply, contravene Paragraph 16(1) of the First Schedule to the Electoral Act, 2022, is an issue of fact. In other words, the Court is required to read and examine the said paragraphs vis-a-vis the averments in support of the petition to determine, whether new issues were raised or not. There are concurrent findings of the two lower Courts, after a careful scrutiny of the said paragraphs, to the effect that the paragraph offend Paragraph 16(1) of the First Schedule. It is settled law that this Court does not make a practice of interfering with concurrent findings of fact unless the findings are shown to be perverse. See: Oke Vs Mimiko (No.2) (2014) 1 NWLR (Pt.1388) 225 @ 398 A – B, Ibodo Vs Enarofia (1980) 5-7 SC 42; Chiwendu Vs Mbamali (1980) 3-4 SC 31; Otitoju Vs Governor of Ondo State (1994) LPELR – 2825 (SC) @ 17 D – F; Olatayo Vs The State (2022) LPELR – 56882 (SC) @ 21-23 F – B. – Per K. M. O. Kekere-Ekun, JSC

 

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BURDEN OF PROOF – BURDEN OF PROOF IN ELECTION PETITIONS

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By virtue of Section 131 and 132 of the Evidence Act and settled authorities, the burden of proof in an election petition where declaratory reliefs are sought, lies on the petitioner, as he is the party who would fail if no evidence is produced on ether side. See: Omoboriowo Vs Ajasin (1983) 10 SC 178; Buhari Vs INEC (2008) LPELR – 814 (SC) @ 48 B – D; Oyetola Vs INEC (2023) 11 NWLR (Pt. 18 94) 125 @ 168 A – D. The evidential burden would only shift where evidence produced by the petitioner establishes the facts alleged in the petition.  – Per K. M. O. Kekere-Ekun, JSC

 

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NON-COMPLIANCE – DUTY OF THE PETITIONER WHERE THERE IS A COMPLAIN OF NON-COMPLIANCE WITH THE ELECTORAL ACT

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Section 135(3) of the Electoral Act, 2022 provides:

“135(2) No election shall be questioned or cancelled by reason that there is a mistake, conflict or inconsistency in the date contained in the result of such election signed by a returning officer or any other officer of the Commission.”

There is no doubt that this clear and unambiguous provision was inserted in the Electoral Act, 2022 to ensure that an election is not nullified or cancelled owing to a genuine error in the date endorsed on the result of an election. The section acknowledges the possibility of human error, which should not be allowed to defeat the outcome of an otherwise duly conducted election reflecting the will of the electorate.

Furthermore, where there is a complaint of non-compliance with the provisions of the Electoral Act, the petitioner must go further to prove that the alleged non-compliance substantially affected the outcome of the election. See Section 135(1) of the Act. See also: per Okoro, JSC in Abubakar Atiku & Anor, Vs INEC (supra) @ pages 67 – 68, where His Lordship held, inter alia:

“From the provision of the Electoral Act stated above, it is crystal clear that a petitioner seeking to nullify an election on ground of non-compliance, must not only lead evidence to prove the noncompliance but must also show to the Court how well non-compliance substantially affected the outcome of the election. A petitioner in this situation must therefore adopt a kind of double-barrel approach, you don’t fire one barrel and leave the other intact. Both must be fired together at the same time.”

See also: Yahaya Vs Dankwanbo (2016) 1 SC (Pt. III) 29: (2016) LPELR – 48364 (SC) @ 30 – 32 C – A; Akinlade Vs INEC (2019) LPELR – 55090 (SC) © 10 D – F.  – Per K. M. O. Kekere-Ekun, JSC

 

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ELECTORAL ACT – BURDEN AND STANDARD OF PROOF WHERE THERE IS A COMPLAIN OF NON-COMPLIANCE WITH THE ELECTORAL ACT

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Having regard to the provisions of Section 135(3) of the Electoral Act, 2022, it is clear that the present scenario is one of those envisaged by the legislation. In order to prove non-compliance with the provision of the Electoral Act, in the present circumstances, I am in complete agreement with the trial Tribunal that the appellant ought to have called witnesses who could positively testify to the fact that while they were at the specified collation centres, results were being announced to their shock and amazement. Not only that, they were required to prove that the alleged non-compliance substantially affected the outcome of the election. This evidence is crucial in view of the legal presumption of correctness in favour of election results. The burden is on the petitioner to rebut same. See: Omoboriowo Vs Ajasin (supra); Buhari Vs INEC (supra); Ngige Vs INEC (2015) 1 NWLR (Pt, 1440) 281 @ 317 H. – Per K. M. O. Kekere-Ekun, JSC

 

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S. 135 (3) OF THE ELECTORAL ACT 2022 – THE PURPOSE OF S. 135 (3) OF THE ELECTORAL ACT 2022

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In Ogboru Vs Okowa (2016) 11 NWLR (Pt. 1522) 84 @ 124 C – E, his Lordship Onnoghen, JSC (later CJN) held thus:

“If the defect in these two documents [Exhibits P28 and P29 Forms EC8D and EC8E] are to lead to the nullification of the entire election and the return of the 1st respondent, beyond appellants’ ipse dixit on the disparity between the date the signatures on the documents were appended and the date the elections were concluded, appellants must further establish the difference in the figures in the exhibits and the figures in the Forms EC8A, EC8A (sic) and EC8C they drew from. Having failed to demonstrate this, it is absurd for the appellants to press that the entire April Governorship election in Delta State be annulled because of wrong dates on Exhibits P28 and P29.”

The purpose of Section 135(3) of the Electoral Act, 2022 is to prevent a petitioner from overturning an otherwise well-conducted election on the basis of an accidental slip. – Per K. M. O. Kekere-Ekun, JSC

 

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S. 137 OF THE ELECTORAL ACT, 2022 – THE APPLICATION OF S. 137 OF THE ELECTORAL ACT – BURDEN OF PROOF WHERE NON-COMPLIANCE IS ALLEGED IN AN ELECTION PETITION

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Section 137 of the Electoral Act, 2022 provides:

“137. It shall not be necessary for a party who alleges non-compliance with the provision of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance”

The application of this section was considered in Oyetola Vs INEC (supra) and Abubakar Atiku Vs INEC (supra). In Abubakar Atiku Vs INEC, His Lordship, Okoro, JSC held thus:

“… The above provision has not absolved a petitioner of the need to lead credible evidence to prove non-compliance. It states clearly that oral evidence may not be necessary if and only if on finals or certified true copies manifestly disclose non-compliance.”

His Lordship, Jauro, JSC expressed a similar opinion in Oyetola Vs INEC (supra). The consistent position of this Court against the dumping of documents has always been to protect and maintain the integrity of the Court as an unbiased umpire. A Court is not expected to engage in an investigation of documents/evidence tendered by a party in the recess of its chambers which have not been demonstrated in open Court. To do so would reduce the Judge from his lofty height above the fray to the dust of conflict below. In Action Congress of Nigeria Vs Lamido (2012) ALL FWLR (Pt,630) 1316; (2012) 8 NWLR (Pt.1303) 560, His Lordship Fabiyi, JSC stated thus:

“The basic aim of tendering documents in bulk is to ensure speedy trial and hearing of election petition. But that does not exclude proper evidence to prop such dormant documents. It is not the duty of a Court or Tribunal to embark upon cloistered justice by making enquiries into the case outside the open Court, not even by examination of documents which were in evidence but not examined in the open Court. A Judge is an adjudicator, not an investigator.”

See also Ladoja Vs Ajimobi (2016) 10 NWLR (Pt, 1519) 87; Ogboru Vs Okowa (supra); Omisore Vs Aregbesola (2015) 15 NWLR (Pt. 1482) 205. – Per K. M. O. Kekere-Ekun, JSC

 

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BURDEN OF PROOF – BURDEN OF PROOF EVEN IN THE LIGHT OF S. 137 OF THE ELECTORAL ACT, 2022

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I have examined the record and I agree with the two lower Courts that the appellants’ documents were dumped on the Tribunal without being demonstrated.

Section 137 of the Electoral Act, 2022 was seen as a saviour, absolving them of the need to properly link any of the bulk of documents tendered to specific aspects of their case. They expected the Tribunal to retire to chambers and scrutinize the documents one by one to determine which one supports a particular aspect of their case. This is not the duty of the Court. Besides, the appellants have the burden of proving that the alleged non-compliance substantially affected the outcome of the election. – Per K. M. O. Kekere-Ekun, JSC

 

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OVERVOTING – DOCUMENTS REQUIRED TO PROVE OVERVOTING

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This Court has settled the position as to the documents required to prove overvoting. They are:

(i) the voters register;

(ii) the Bimodal Voter Accreditation System (BVAS), and

(iii) Form EC8As.

This is because in order to prove overvoting, the party complaining must prove that the number of votes cast in any polling unit exceeds the number of accredited voters in that polling unit. See Section 51(1) of the Electoral Act, 2022. The voter’s register will determine the number of registered voters. The BVAS machine will show how many of the registered voters were accredited to vote, while the Form EC8As will indicate the number of votes cast at the election. See also: Oyetola Vs INEC (supra).

The appellants did not tender any BVAS machines. It was held in Oyetola Vs INEC (supra) that the failure to tender any of the documents referred to above, is fatal to the petition.

​Furthermore, multiple thumbprinting and ballot box stuffing are allegations of crime, which must be proved beyond reasonable doubt. See: Anyanwu Vs P.D.P. (2020) 3 NWLR (Pt. 1710) 170 B – C. – Per K. M. O. Kekere-Ekun, JSC

 

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PRE-ELECTION MATTERS – CLASSIFICATION OF PRE-ELECTION MATTERS

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This Court has been wearied and inundated with the issue of what a pre-election matter entails and amounts to! In fact, the yardsticks and criteria have been laid down in a plethora of decided cases by this Court. A suit seeking the disqualification of a candidate on the grounds of false information or document contained in his Forms CF001 or EC9 is a pre-election matter. See AKINLADE V. INEC (2020) 17 NWLR (PT. 1754) 439 AT 463-464, PARAS. G-E, A.P.M. v. INEC (2O22) 13 NWLR (PT. 1846) 159 AT PP. 181-182, PARAS.D-D. Our Courts have classified pre-election matters into: (1) nomination of a candidate (2) double nomination of a candidate (3) disqualification of a candidate (4) wrongful substitution of a successful candidate’s name by the Electoral Body (5) wrongful omission of a successful candidate’s name by the Electoral Body (6) complaints about the conduct of primaries (7) false declaration on oath about particulars of a candidate. See APC v LERE (SUPRA), MODIBBO v   USMAN (2020) 3 NWLR (PT. 1712) 470 @ 500 – 515, GBILEVE V. ADDINGI (2014) 16 NWLR (PT. 1433) 394. – Per U. M. Abba-Aji, JSC

 

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STARE DECISIS – THE APPLICATION OF THE PRINCIPLE OF STARE DECISIS

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By the established principle of stare decisions, this Court and all other Courts below it are bound by and have a duty to apply the extant decisions, which are in rem, for being on interpretation of statutory provisions. See Kawawu v. PDP (2017) 3 NWLR (pt. 1553) 420 (SC), Kalejaiye v. L.P.D.C. (2019) 8 NWLR (pt. 1674) 365 (SC), Jev v. lyortom (2015)15 NWLR (pt.1483) 484 (SC), FBN, Plc. V. Maiwada (2013) All FWLR (pt. 661) 1433 (SC). – Per M. L. Garba, JSC

 

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DOCUMENTS – CONDITIONS FOR DOCUMENTS TENDERED FROM THE BAR TO BE OF ANY USE OR HELP TO THE PERSON RELYING ON THEM

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I should emphasize that for documents tendered from the Bar to be of any use and help to the person relying on them, they must be identified and related to the specific aspect of the non-compliance alleged by evidence of the witnesses for the duty of the tribunal on Court to arise under and by virtue of the provisions in Section 137 of the Electoral Act and for the benefit under Paragraph 46 (4) of the 1st Schedule to the Act, to inure. It would be practically impossible and cloistered justice for a Court or Tribunal to embark on a search or investigation of the usually tons of documents tendered in bulk from the Bar in order to fish out which ones related to a particular species of the non- compliance alleged and in respect of which they were intended to prove. Investigation is not part of the duty of a Court or Tribunal. See Tunji v. Bamidele (2012) 12 NWLR (pt. 1315) 477, B.L.L.S. Co. Ltd. v. MV. Western Star (2019) 9 NWLR (pt. 1678) 489 (SC).

There must be evidence of a link or connection between the documents and the identified non-compliance alleged otherwise the documents would remain dead without a voice and be deemed to be dumped on the Court or Tribunal. – Per M. L. Garba, JSC

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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1.Constitution of the Federal Republic of Nigeria 1999 (as amended)

2.Electoral Act, 2022

3.Evidence Act, 2011

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