Legalpedia Citation: (2023-10) Legalpedia 17112 (SC)

In the Supreme Court of Nigeria

Holden At Abuja

Mon Oct 23, 2023

Suit Number: SC.CV/892/2023

CORAM

John Inyang Okoro Justice, Supreme Court

Helen Moronkeji Ogunwumiju Justice, Supreme Court

Adamu Jauro Justice, Supreme Court

Tijjani Abubakar Justice, Supreme Court

Emmanuel Akomaye Agim Justice, Supreme Court

PARTIES

 

SEN. SMART ADEYEMI

 

 

APPELLANTS

1. ALL PROGESSIVES CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. AHMED USMAN ODODO

RESPONDENTS

AREA(S) OF LAW

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

 

SUMMARY OF FACTS

The contention of the Petitioner/Appellant is that the 1st respondent herein did not conduct a valid primary election for the November 2023 general election of governor of Kogi State in all the 239 wards in the state on 14-4-2023 making the declaration of the 3rd Respondent as the Part’s candidate invalid. The 1st Respondent however claimed the contrary and affirmed that elections were duly conducted resulting in a victory for the 3rd respondent herein.

The Appellant failed to prove his case and claimed that the burden of proof rested on the respondents to prove that an election was conducted.

This Appeal is against the judgment of the Court of Appeal affirming the findings of facts by the trial Federal High Court in its judgment.

 

HELD

Appeal dismissed

ISSUES

1. Taking into consideration the categorical pronouncement of the Honourable Court below that the fundamental issue between parties across the divide is whether a valid primary election was conducted or not: is it not a settled position of law that it is the party who asserts that the said election was conducted that bears evidential burden to party to prove same, and is it not too obvious that the Respondents who assert that the said election was conducted failed woefully to prove that the said election was conducted in AT LEAST 228 Wards out of 239 Wards in issue?
2. Taking into consideration the entire 35 paragraph affidavit of the Appellant in support of his Originating Summons: can it be lawfully and equitably argued that paragraphs 8, 22, 25 and 26 of the said affidavit had any negative impact on the case of the Appellant, even if any of these paragraphs contained criminal allegations?

 

RATIONES DECIDENDI

COURTS – CONDUCT OF COURTS TO CONCURRENT FINDINGS OF TRIAL AND APPELLATE COURTS

The complains in the grounds of this appeal are about issues of facts adequately dealt with by the Court of Appeal in concurrence with the decision of the trial Court on those facts. The complains seek to re-open these issues of facts settled by the concurrent findings of the two lower Courts. This Court has no power to reconsider such issue of facts unless where the findings on them are alleged to be perverse or had been made in serious error of law that has occasioned a miscarriage of justice. See Aganmwonyi V A.G of Bendel State (1987) 1 SCNJ 33, Adeleke V Aserifa (1990) 5SC (PT.1) 104, Are & Anor V Ipaye & Ors (1990) 3SC (pt.11) 109, Latunde & Anor V Lajinfin (1989) LPELR – 1760 (SC).

Considering that it was the appellant who filed the suit in the trial Court desiring the Court to give judgment that no valid direct primary election was held by the 1st respondent on 14-4-2023 or any other date in the 239 wards of Kogi State, that the 3rd respondent was not validly elected as the 1st respondent’s candidate for the November 2023 election of Governor of Kogi State and an order that 1st respondent conducts a fresh primary election and in the face of the concurrent findings of the two lower Courts, that the 1st respondent herein validly conducted a direct primary election of its candidate for the November 2023 general election of governor of Kogi State in all the 239 wards in the state on 14-4-2023, that the 3rd respondent herein was validly elected as 1st respondent’s candidate and that the appellant did not prove his case and in the absence of any complaint, that the findings are perverse. It cannot be validly argued, as the appellant has done here, that the burden to prove that the 3rd respondent herein was validly elected as 1st respondent’s candidate rests on the respondents that assert so and not the appellant that asserts that he was not validly elected. This Court lacks the power to review the said concurrent findings of facts merely on the basis of such complaint and argument. See Aganmwonyi V A.G of Bendel State (1987) 1 SCNJ 33.

In Ebolor V Osayande (1992) 7 SCNJ 217, this Court had restated thusly “This brings me to the question of concurrent findings on the point. This Court usually approaches such findings from the premises, that following from the fact that making of findings on primary facts is a matter pre-eminently within the province of the Court of trial which has the opportunity of seeing and hearing the witnesses testify, a Judge’s conclusion on the facts is presumed to be correct. So, that presumption must be displaced by the person seeking to upset the judgment on facts”.

In Bamgboye v University of Ilorin & Anor (1999) 6 SC (Pt 11) 72 it held that it is trite law that findings of primary facts are matters peculiarly within the competence of the Court of trial. The assessment, evaluation, appraisal of evidence therefrom and the ascription of probative values thereto, being primarily and pre-eminently that of the trial Court, any interference by an appeal Court therewith is by law, confined to narrow and limited dimensions.

In Bamgboye & Ors V Olarewaju (1991) 5 SCNJ 88, this Court held that “the occasions whereby the appellate Court will interfere are those where the findings of facts do not relate to the evidence or are not even in evidence which case the Court relied on facts not in evidence before it”.

In Osho & Anor V Foreign Finance Corporation & Anor (1991) 5 SC 59, this Court repeated that “Concurrent findings cannot be interfered with by the Supreme Court unless they are not justified by the evidence and have occasioned miscarriage of justice”. See also Amadi V Nwosu (1992) 6 SCNJ59 and Jimoh & Ors V Akande & Ors (2009) LPELR-8087(SC).

In Samaila V The State (SC.1158C/2019 on 7-7-2023) this Court again held that- “With the acceptance of the findings of fact of the trial Court by the justices of the Court below, there is in existence two concurrent findings of facts of the two lower Courts which, in the absence of a substantial error shown, the Court will not make it a policy to disturb them unless there is a substantial error apparent on the record of proceedings or where there is some miscarriage of justice or a violation of some principle of law or procedure or the findings shown to be perverse.

It is also trite law that it is not part of the function of an appeal Court to substitute its own views for those of the trial Court particularly where the issue turns on the credibility of witnesses.

In the light of the foregoing, the only appeal that can validly lie against the findings of facts by the Court of Appeal concurring with the finding of facts by a trial High Court is an appeal complaining that the findings are perverse or violate some principle of law or procedure, which violation has caused a miscarriage of justice or that the concurrent findings are defeated by a substantial error that is apparent on the face of the proceedings and which error has occasioned a miscarriage of justice. Any appeal against the concurrent findings of the two Courts below on grounds outside the ones listed above is not valid for consideration by this Court. The appellate power of this Court does not extend to the consideration of such appeal. An appeal against concurrent findings of facts cannot lie to complain that the prosecution did not prove its case beyond reasonable doubt as this would involve a review and re-evaluation of the totality of the evidence. It is for this reason that such an appeal cannot lie on a general ground. Such an appeal cannot lie to merely canvass an alternative view on the evidence.”  – Per E. A. Agim, JSC

BURDEN OF PROOF – BURDEN OF PROOF IN AN ELECTION PETITION

It was the appellant who filed the suit in the trial Court desiring the Court to give judgment that no valid direct primary election was held by the 1st respondent on 14-4-2023 or any other date in the 21 Local Government Areas of Kogi State, that the 3rd respondent was not validly elected as the 1st respondent’s candidate for the November 2023 election of Governor of Kogi State and an order that 1st respondent conduct a fresh primary election on the basis of his assertion in his affidavit in support of his originating summons that no valid direct primary election was held by the 1st respondent on 14-4-2023 or any other date in the 21 Local Government Areas of Kogi State. The grounds of this appeal, the two issues raised from them for determination in the appellant’s brief and their arguments therein are unreasonable, not triable and without substance and vexatious in view of Ss. 131, 132 and 133 of the 2011 Evidence Act, which prescribe who as between the parties in a civil suit has the burden to prove the existence or non-existence of facts which he asserts in a civil suit. For ease of reference, the full text of those provisions are reproduced here as follows-

1. 131 (1) “whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

133. (1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the proceedings.

(2) If the party referred to is Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.

(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.

It is glaring from these provisions that the party that has the primary legal burden to prove the existence or non-existence of any fact is the one who desires a Court to give judgment as to any legal right or liability dependent on the existence or non-existence of facts which he asserts and is the party to fail if no evidence is led on either side. So, by virtue of the above provisions, particularly S. 133 (1) of the said Evidence Act, the factor that determines who has the initial burden of proof is not whether the allegation is affirmative or negative. An allegation is affirmative when it asserts the existence of facts. It is negative when it asserts the non-existence of facts. S. 133 (1) puts the matter beyond argument when it states that the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side. – Per E. A. Agim, JSC

BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL PROCEEDINGS

An established and settled case law already exists from a long line of decisions of this Court applying the above provisions of the Evidence Act. Examples include EGHAREVBA V. OSAGIE (2009)18 NWLR (PT 1173) 299 (SC), Melifonwu & Ors V Egbuji & Ors (1982) LPELR-1857(SC), DANA IMPEX LTD. V ADEROTOYE (2006) 2 NWLR (PT. 966) 78 AT 102 – 103, TUKUR V. GOVERNOR OF GONGOLA STATE (1988) 1 NSCC VOL. 19 P. 30 AT 38 AND BAYELSA V. A – G RIVERS STATE (2006) 18 NWLR (PT. 1012) 596 AT 644. In EGHAREVBA V. OSAGIE (2009) 18 NWLR (PT 1173) 299 (SC) the Supreme Court applying exactly similar provisions held that- “the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings, See Section 137(1) of the Evidence Act. If such party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence adduced and so successively, until all the issues in the pleadings have tiff who brought the action, though not invariably so”.

Dana’s case restated that- “where an allegation is made whether affirmative or negative by a party, the burden of proving that allegation rests squarely on the party who made it is to be emphasized here that it was the respondent who asserted the fact of non-registration of the 1st appellant and the burden of proving that therefore rested on him”.

In AD V. FAYOSE, it was held that- “By the rule of pleading, where a given allegation, whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation lies squarely on him. Therefore a legal burden or primary burden lies on him to establish the allegation.

See also OSAWARU V. EZEIRUKA (1978)2 6-7 SC (REPRINT) 91, KAIYAOJA & ORS V. EGUNLA (1974)12 SC (REPRINT) 49. SEE OSIDELE & ORS V. SOKUNBI (2012) LPELR 9278 (SC), DURU V. NWOSU (1989)4 NWLR (PT 113) 24 AND AGU V. NNADI (2002) 12 SC (PT 1) 173. – Per E. A. Agim, JSC

COURTS – CONDUCT OF COURTS IN DETERMINING IF ISSUES FOR DETERMINATION RELATE WITH GROUNDS OF APPEAL

It is noteworthy that the two issues raised for determination in the appellant’s brief have no relationship with the complains in grounds 2, 3 and 5. The appellant had indicated under issue No. 1 in bracket grounds 1, 2, 3 and 5 suggesting that the issue is distilled from those grounds. Such an indication is not what determines the relationship between the issue for determination and the grounds. What determines that relationship is the subject matter of the complaint in the ground of appeal and the subject matter of the issue for determination. If the subject matter of the ground of appeal and that of the issue for determination are the same, then the issue is connected to the ground of appeal. If the subject matter of the complain in the ground of appeal is different from that in the issue for determination, then the issue for determination is not derived from that ground of appeal. – Per E. A. Agim, JSC

GROUNDS OF APPEAL – WHERE ISSUES FOR DETERMINATION ARE NOT RAISED FROM GROUNDS OF APPEAL

It is trite law that grounds of appeal from which no issue is raised for determination in an appeal are deemed abandoned as grounds for the appeal. See Obasi & Anor V Onwuka & Ors (1987) 7 SCNJ 84 and A-G Bendel State & Anor V Aideyan (1989) 9 SCNJ 80. – Per E. A. Agim, JSC

COURTS – CONDUCT OF THE SUPREME COURT IN DEALING WITH THE CONCURRENT FINDINGS OF THE LOWER COURTS

The law is now well settled that concurrent finding of facts cannot be re-opened unless the Appellant is able to show exceptional circumstances to warrant the interference of the Supreme Court. See MTN vs. Hanson (2017) LPELR – 48456 (SC); Maba vs. State (2020) LPELR – 52017 (SC); Ezemba vs. Ibeneme (2004) LPELR – 1205 (SC) Okonkwo vs. Adigwu (1985) 1 NWLR (Pt.4) 694; Ferodo Limited vs. Ibeto Industries Limited (2004) LPELR -1275 (SC).

I feel obligated to say that this Court, in its appellate jurisdiction, has no business reviewing or re-evaluating evidence previously reviewed by the Court of Appeal unless there is a special circumstance which may warrant such exercise, to wit: where the judgment is perverse or where there is a miscarriage of justice or where it is manifest that the finding is not supported by the evidence on record. – Per J. I. Okoro, JSC

BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL PROCEEDINGS

There is no doubt that where a Court misplaces the burden of proof, the judgment would be set aside. See IWUORIE IHEANACHO v. MATHIAS CHIGERE (2004) 7 SCNJ 272.

Generally, in civil cases, the burden of proof is cast on the party who asserts the affirmation of a particular issue. See UNITY BANK PLC v. COLONEL BELLO MOHAMMED AHMED (RTD) (2019) LPELR- 47395(SC). However, by the provisions of Sections 131, 132 and 133(1) of the Evidence Act, 2011 the burden of proof falls on the party who would fail if no evidence at all were given on either side.

These Sections of the Evidence Act 2011 provide as follows:

131. (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

133. (1) In civil cases the burden of first proving existence or nonexistence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If the party referred to in Subsection(1) adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.

(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.

The two sides hold opposing views. I have no doubt that the Respondents are not obliged to do anything until the Appellant had discharged the onus probandi and that both the initial legal and subsequent evidential burden rests on the Appellant. The determination of this issue cannot be taken in an isolated or theoretical context. The Court must take into consideration the context of the reasoning of the two Courts below.

It is certain that the initial burden of proof is fixed by the pleadings. See UZOKWE v. DANSY INDUSTRIES (2002) 1 SCNJ 1. Let us look at the pleadings in this case and while looking at the pleadings let us remember that this is a pre-election petition which is sui generis and is outside the normal genre of civil procedure and is in a class of its own. Contrary to the view of learned 1st Respondent’s counsel, the law is that in a case fought by originating summons, the declarations sought and questions posed to the Court for determination constitute the pleadings, while the affidavit in support of the summons and the exhibits attached thereto constitute the evidence in support of the pleadings.

It is elementary law that a Plaintiff has the burden to prove the reliefs sought in the statement of claim or originating summons to obtain judgment. That burden does not shift. This is because he is the party who claims the reliefs in the statement of claim, and so the onus probandi rests on him. He must prove the affirmative content of his statement of claim. Our adversarial system of justice demands that.

Then where a party in a suit complains that the provisions of the Constitution or a statute have been breached by the acts performed by the other party, the Court ought to examine the acts complained of against the relevant provisions of the law in order to resolve the issue. – Per H. M. Ogunwumiju, JSC

BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL PROCEEDINGS – CONDUCT OF COURTS IN DETERMINING WHERE THE BURDEN OF PROOF LIES

The law of evidence is all about proof of a particular issue. Proof in its legal meaning is the process by which the existence or non-existence of facts is established to the satisfaction of the Court.

Burden of proof can be divided into three:

(1) The legal burden – S.131 Evidence Act

(2) The Evidential burden – S.132 Evidence Act

(3) Burden on the pleadings – S.133 of the Evidence Act.

Uwais ON held in BUHARI v. OBASANJO (2005) 7 SCNJ Pg. 1 at Pg.47 that:

“In general, in a civil case, the party that asserts in its pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence. If the party fails to do so, its case will fail. On the other hand, if the party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden of proof that rests on it. The burden is then said to have shifted to the party’s adversary to prove that the fact established by the evidence adduced, could not on the preponderance of evidence, result in the Court giving judgment in favour of the party. These propositions are the product of Sections 135-139 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria 1999.”

Thus, generally, in civil cases, the burden of proof is cast on the party who asserts the affirmation of a particular issue: See OKECHUKWU v. NDAH (1967) NMLR 368; AKINFOSILE v. IJOSE (1960) SCNLR 447; NBN LTD. v. OPEOLA (1994) 1 NWLR Pt.319 126. The burden rests on the party whether plaintiff or defendant who substantially asserts the affirmative of an issue: See MESSRS LEWIS & PEATS (NRI) LTD. V. A.E. AKHIMIEN (1976) 7 SC.p.157 at 169.

Where there has been assertion and denial of a fact in issue, onus rests on the party asserting. IBRAHAM v. OJOMO (2004) 4 NWLR Pt.862 pg.89 at 110.

Section 133 is the most pertinent in the circumstances of this case. Section 133(1) provides that whether the Appellant is making an affirmative assertion i.e. the existence of a fact or a negative assertion- the non-existence of a fact, the burden of first proving either of the two lies on the party against whom judgment would be given if no evidence is led on either side. Section 133(2) provides that the burden of proof shifts as the facts preponderates or as the facts in issue are proved by each side.

Section 133 of the Evidence Act speaks of existence and non-existence of a fact. The affirmation of a fact is the claim of existence thereof. The negation of a fact is the claim of non-existence thereof. Therefore, Section 133 talks about the existence of a fact which means both the positive and negative assertions are contemplated.

Section 133(1) talks about “the burden of first proving” the existence or non-existence of a fact. With humility, I would not agree that the Appellant making a negative assertion needs only to make the assertion in the pleadings and thereafter fold his arms expecting the Respondent to bring forth evidence to debunk the assertion in the pleadings. If after the Appellant had started the process and had discharged the burden of first proof on a balance of probabilities, then the onus shifts to the Respondents to debunk the negative assertion. In my humble view, what the law requires is that the initial onus being on the Appellant as Applicant or Claimant at the trial Court, he has to adduce evidence that no election took place. Then, in spite of the presumption that a return by INEC is regular, the burden then shifts on to the Respondents to prove that indeed, election took place.

Where the burden of proof of the non-existence or existence of a fact is in issue, regard must be had for presumptions arising from the pleadings. See CHIEF ARCHIBONG v. CHIEF ITONG ITA (2004) 1 SCNJ 141 also (2004) 4 NWLR Pt.858 Pg.590 per TOBI JSC on page 619.

There is no doubt that by the combined effect of Section 145 and Section 168 of the Evidence Act, 2011, there is a presumption of regularity in respect of judicial or official Acts. That is to say, formal requisites for validity of all judicial or official acts are presumed to have been complied with until the contrary is proved. See THE NIGERIAN AIR FORCE v. EX.WING COMMANDER L. D. JAMES (2002) 12 SCNJ 380; UCHENNA NWACHUKWU v. THE STATE (2002) 7 SCNJ 230, UDOM v. UMANA (NO. 12 NWLR Pt. 1526 Pg. 179; (2016) LPELR 40659 (SC), P.D.P. v. I.N.E.C. (2022) 18 NWLR Pt. 1863 Pg. 653, ATUMA v. APC & ORS (2023) LPELR-60352(SC).

Now let us talk about the presumption in Section 133 (1) of the Evidence Act.

Section 133(1) states that the burden of first proof lies on the party against whom judgment would be given if no evidence is adduced on either side regard being had to presumption that may arise on the pleading. The presumption arising from the pleading of both parties is that INEC which witnessed the primary as an official act declared that a valid primary election took place in all the local governments.

In SHITTA-BEY v. AG FEDERATION (1998) 7 SCNJ 264 Pg.287, the Supreme Court held that:

“Apart from what is called presumption of regularity of official acts, there is the presumption that where there is no evidence to the contrary, things are presumed to have been rightly and properly done.”

See also NIG. AIR FORCE v. JAMES (2002) 12 SCNJ 379 at 392. The presumption is resorted to in respect of official acts where there is no evidence to the contrary. Thus, there must be evidence to the contrary before the presumption of regularity can be rebutted. It is the person who wants to rebut regularity that leads evidence first. – Per H. M. Ogunwumiju, JSC

ELECTION – WHERE A PARTY CONTENDS THE MANNER IN WHICH AN ELECTION WAS CONDUCTED

In the peculiar circumstances of this case being a pre-election matter there is a presumption of regularity of the results released by INEC which were pleaded, this presumption based on the pleadings must then be rebutted by the Appellant. See LAWAL v. APC (2019) 3 NWLR Pt. 1658 Pg. 86 at 105-106, ALL PROGRESSIVES CONGRESS v. BASHIR SHERIFF & ORS (2023) LPELR-59953(SC).  – Per H. M. Ogunwumiju, JSC

ALLEGATIONS – WHERE ALLEGATIONS OF A CRIMINAL NATURE ARE MADE IN A CIVIL PROCEEDIN

My Lords, the allegations of the Appellant are indeed criminal in nature. I agree with the Court below when it held on page 1416-1417 of the Record thus:

“To falsify is to alter so as to make false or to misrepresent or forge which in my view connotes to a crime and thus diverting voting materials to private residence wherein fictitious scores were rolled out qualifies as a criminal allegation. As stated earlier, election matters are not exempted from the law that says that an allegation of crime in any proceedings must be proved beyond reasonable doubt. See ADENIGBA & ANOR v. OMOWORARE & ORS (2015) LPLER – 40531 (CA)”

To begin an exposition on the standard of proof in criminal cases at this point would amount to over flogging an age-long principle of this hallowed Court. It is also trite that proof beyond reasonable doubt does not mean proof beyond all shadows of doubt. It simply means establishing guilt with compelling and conclusive evidence. – Per H. M. Ogunwumiju, JSC

COURTS – CONDUCT OF COURTS IN THE ADJUDICATION

The Court of law is an unbiased umpire and will continue to remain so. The Court cannot take a party’s word for it. Any party who makes an allegation must tender credible evidence in order to be entitled to a judgment in its favour. If the Court succumbs to giving judgment in favour of any party who makes criminal allegations in electoral matters, it will soon become a play house as all parties who lose elections will adopt the system of formulating flimsy allegations and bringing such before the Courts.

My Lords, there are a legion of authorities that have established the principle that this Court will not disturb the concurrent findings of the Courts below unless they have been shown to be perverse and have occasioned a miscarriage of justice. See ALL PROGRESSIVE CONGRESS & ANOR v. GODWIN NOGHEGHASE OBASEKI & ORS (2021) LPELR-55004(SC), ADEKUNLE ABDULKABIR AKINLADE & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2019) LPELR-55090(SC), and INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) v. NEW NIGERIA PEOPLES PARTY (NNPP) (2023) LPELR-60154(SC). – Per H. M. Ogunwumiju, JSC

ELECTION – BURDEN OF PROOF IN AN ELECTION PETITION

The contention of the Appellant right from the trial Court up till this Court is that the 1st Respondent failed to conduct its direct gubernatorial primary elections in all wards of Kogi State, on 14th April, 2023. The two Courts below found that the Appellant failed to adduce evidence in proof of his claims and allegations. The Appellant however maintained that he had no duty to prove a negative assertion and that the burden of proof is on the Appellants to prove that the direct gubernatorial primary election took place. In other words, he sought to shift the burden to the Respondents to disprove his assertion that direct primary election was not held.

With respect, the position maintained by the Appellant is untenable in the light of Section 133(1) of the Evidence Act, 2011 which imposes the burden of first proving existence or non- existence of a fact on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. It therefore means that in appropriate situations, a party may bear the burden of proving a negative assertion, or to use the language if the Evidence Act, the burden of proving the non-existence of a fact. In the case at hand, the burden of proving the non-conduct of direct primary election by the 1st Respondent was on the Appellant who made that assertion.

The Appellant having not discharged the burden of proof placed on him by law, there was nothing for the Respondents to disprove. See ADAMU V. NIGERIAN AIRFORCE & ANOR (2022) LPELR – 56587 (SC); JOLAYEMI & ORS V. OLAOYE & ANOR (2004) LPELR – 1625 (SC). – Per Adamu Jauro, JSC

CONCURRENT FINDINGS – CONDUCT OF THE SUPREME COURT TO CONCURRENT FINDINGS OF LOWER COURT

The law is well settled that this Court cannot tinker with concurrent findings of facts unless the findings are out, and out perverse and exceptional circumstances are shown to justify interference; see: FERODO LIMITED V. IBETO INDUSTRIES LIMITED (2004) LPELR-1275 (SC). The Appellant clearly failed to show that the concurrent findings are perverse, and the law is well settled that the burden of establishing the existence or otherwise of a fact is on the party alleging the existence or otherwise of that fact, the Appellant failed to support his allegations and claims that direct primary elections did not hold, his failure to prove that fact is fatal to his appeal. This Court cannot activate and apply its appellate jurisdiction to review the judgment of the lower Court unless the Appellant gives good and compelling reasons to prompt intervention by this Court.  – Per Adamu Jauro, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. APC Constitution
4. 2011 Evidence Act

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