Legalpedia Citation: (2024-01) Legalpedia 73708 (SC)

In the Supreme Court of Nigeria

Fri Jan 12, 2024

Suit Number: SC.CV/1179/2023

CORAM

John Inyang Okoro Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

PARTIES

YUSUF ABBA KABIR

APPELLANTS

1. ALL PROGRESSIVES CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. NEW NIGERIA PEOPLES PARTY (NNPP)

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

At the conclusion of the Governorship election in Kano State held on 18/3/2023, the 2nd respondent (INEC) returned the appellant, sponsored by the 3rd respondent (NNPP) as the winner of the said election with 1,019,602 votes ahead of his closest rival, Nasiru Yusuf Gawuna, who scored a total 890,705 votes. Grieved, the 1st respondent (APC), filed a petition to challenge appellant’s victory at the polls without its candidate. The petition was predicated on diverse criminal issues including forgery of Appellant’s NNPP membership card and Form EC9, use of unlawful ballot papers and appellant’s alleged non-membership of NNPP.

The Tribunal found that membership of a political party is outside its jurisdiction and that the issue of forgery on which the challenge of appellant’s membership was predicated failed. Notwithstanding the said position, the tribunal went on to hold that the challenge to appellant’s membership of NNPP was proven and went to hold that he was not qualified to be sponsored. The Tribunal proceeded to invalidate 165,616 ballot papers on the basis that they were not signed, stamped, dated, and without the names of the Presiding Officers. Following from the above decision, the petition of the 1st respondent was upheld and its candidate declared winner of the said election.

On appeal by the appellant, the lower Court affirmed the decision of the Tribunal that the Appellant was proven not to be a member of the political party that submitted his name to INEC and affirmed the invalidation of 165,616 votes, relying on the testimony of PW32 (a subpoenaed expert) whose witness statement was not frontloaded along with the petition and the report produced by him, Exhibit P169.

This decision caused this appeal by the Appellant.

 

HELD

Appeal allowed

ISSUES

 Was the lower Court right when it affirmed the decision of the tribunal to deduct 165,616 votes from that of the appellant on account of allegation of unlawful ballot papers?

 Was the lower Court correct in assuming jurisdiction on a complaint relating to appellant’s membership and sponsorship by his political party and also affirming the Tribunal’s decision that appellant was not a member of his sponsoring political party?

 

RATIONES DECIDENDI

BALLOT PAPER – WHERE THE BALLOT PAPER DOES NOT HAVE THE OFFICIAL MARK PRESCRIBED BY THE COMMISSION – WHERE THE PROVISION OF A STATUTE DEPLOYS THE PHRASE ‘SUBJECT TO’

…For ease of reference, let me reproduce Section 71 of the Electoral Act which states:-

“Every result form completed at the ward, local government, State and National levels in accordance with the provisions of this Act or any Guidelines issued by the Commission shall be stamped, signed, and counter-signed by the relevant officers and polling agents at those levels and copies given to the police officers and polling agents where available. ”

Clearly, the above provision in Section 71 of the Electoral Act, does not refer to or regulate any action at the polling unit. Rather the actions regulated by Section 71 of the Electoral Act not only commence from the ward, but also expressly refer to “result form” to the exclusion of ballot papers. And in any case, what is the effect of a ballot paper not having official mark prescribed by the commission? The answer is found in Section 63(1) and (2) of the Electoral Act, 2022 which provides as follows:-

“63(1) Subject to Subsection (2), a ballot paper which does not bear official mark prescribed by the Commission shall not be counted.

(2) If the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the presiding officer of the polling unit in which the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper. ”

By the above provision, a ballot paper which does not bear the official mark of INEC is not altogether invalid for all purposes. As was submitted by the learned counsel for the appellant, the vexed ballot papers contain both the logo of INEC and Coat of Arms of the Federal Republic of Nigeria as prescribed by Section 45 of the Act. Assuming these marks were not there, it is for the petitioner making a claim of unlawful ballot papers to prove that the ballot papers did not come from a booklet of ballot papers furnished to the Presiding Officer pursuant to Section 63(2) of the Electoral Act. It has to be noted that Section 63(1) of the Act which provides that ballot papers without official mark of the Commission shall not be counted, opens with the phrase “Subject to Subsection 2”. The law is trite that where the provision of a statute deploys the phrase “subject to”, the said provision is subjugated to the provision/clause it has been made subject to. See Oloruntoba-Oju & Ors v Abdul-Raheem (2009) 13 NWLR (pt. 1157) 83 at 138 – 139. Hence, by the clear and unambiguous provision in Section 63(1) and (2) of the Electoral Act, before an impugned ballot paper is rejected, it must be proven by the party seeking to have it rejected that it was not from the booklet of ballots furnished to the polling unit. In the instant case, there is no such pleading or proof that the said ballots were not the ones furnished to the presiding officer in the polling unit.  – Per J. I. Okoro, JSC

 

BALLOT PAPERS – WHERE BALLOT PAPERS HAVE BEEN SIGNED AND STAMPED WITH DATE BEING THE ONLY MISSING FEATURE

…out of the 165,616 ballot papers held to be invalid, 146,292 were both signed and stamped. The only feature left out was the date. Therefore those ballot papers not only fully complied with the format as prescribed in the Electoral Act, they also substantially complied with the Guidelines. By exhibit P169, at the very minimum, 146,292 votes arising from ballot papers confirmed to be signed and stamped should have been restored to the appellant which by itself will reinstate the victory of the appellant. Thus apart from the official mark qua logo of INEC on the front of the ballot papers, these additional entries further support the validity of the ballot papers and votes arising therefrom. See Abubakar v Yar’adua (supra) Buhari v INEC (2008) 19 NWLR (pt. 1120) 246 at 395. – Per J. I. Okoro, JSC

NOMINATION AND SPONSORSHIP – WHETHER THE ISSUE OF NOMINATION AND SPONSORSHIP OF A CANDIDATE FOR AN ELECTION IS EXCLUSIVELY WITHIN THE PREROGATIVE OF A POLITICAL PARTY – WHERE A CANDIDATE HAS CIRCUMVENTED ANY PROVISION OF THE CONSTITUTION OR THE ELECTORAL ACT – DUTY OF A POLITICAL PARTY TO MAINTAIN AND PRESENT A REGISTER OF ITS MEMBERS TO INEC

My Lords, this Court has consistently held in a legion of decided cases that the issue of nomination and sponsorship of a candidate for an election is exclusively within the prerogative of a political party, as long as such selection for sponsorship is in compliance with the law. Being an internal affair of the sponsoring political party, it is not justiciable how a candidate sponsored came to be, as long as it is satisfied that the candidate participated in all stages leading up to his nomination. See Enang Vs. Asuquo (supra); Sani vs. Galadima (2023) LPELR-60183(SC); Onubogu vs. Anazonwu (2023) LPELR-60238 (SC) Sulaiman Vs. All Progressives Congress (2022) LPELR-58846(SC). Agi Vs. Peoples Democratic Party (2016) LPELR-42578 (SC).

Where the candidate sponsored has circumvented or breached any provision of the Constitution or the Electoral Act in the process leading up to his nomination; the law is clear under Section 84 (14) of the Electoral Act, 2022 and Section 285 (14) of the 1999 Constitution, that is an aspirant who complains about the alleged non-compliance with the law that may apply to the Federal High Court for redress within 14 days from the date of occurrence of the event complained of. Failure to file such a complaint in Court within 14 days, renders it statute barred and not cognizable before a Court of law.

Now, Section 77 (2) of the Act provides that “every registered political party shall maintain a register of its members in both hard and soft copy”. By Subsection (3) the Act mandates every political party to make its register of members available to the Independent National Electoral Commission (INEC) not later than 30 days before the day fixed for the primary elections, congress or convention.  – Per J. I. Okoro, JSC

 

SPONSORSHIP – WHERE A MEMBER OF A POLITICAL PARTY IS SPONSORED BY A PARTY AS ITS CANDIDATE

In the case of Oni Vs. Oyebanji (2023) LPELR- 60699 (SC) this Court held that “the provision of Section 177(C) of the 1999 Constitution does not provide for consideration of how a political party arrived at the decision to sponsor or the validity of the sponsorship itself. The fact that a member of the political party is sponsored by it as its governorship candidate for the general election makes such a person automatically qualified for election to the office of Governor of a State”. See also Al-Hassan Vs. Ishaku (supra). In fact, S.177(C) of the Constitution frowns at Independent candidacy and nothing more. – Per J. I. Okoro, JSC

 

MEMBERSHIP OF POLITICAL PARTIES – WHETHER THE LAW CONCERNS ITSELF WITH THE MEMBERSHIP OF POLITICAL PARTIES

Before I conclude on this issue, I need to state that it is not in doubt that the law by virtue of Section 35 of the Electoral Act is against multiple nomination but I am yet to find that provision which determines or checks membership of a political party. It therefore means that the law does not concern itself about membership of political parties as long as a candidate does not knowingly allow himself to be nominated by multiple political parties for the same election. I also hold the opinion that the requirement under Section 77 (3) of the Act for submission of register of members to members to Independent National Electoral Commission (INEC) not later than 30 days to the party primaries is to ascertain that the party to be put on the ballot is not a hoax. – Per J. I. Okoro, JSC

NOMINATION – CONDUCT OF COURTS WHERE A PARTY ACCEPTS, NOMINATES, AND SPONSORS A CANDIDATE

In view of the above, the Court below erred in law when it held that Section 134(1)(a) of the Electoral Act juxtaposed with Section 77(3) of the Act has opened a window for the Court to investigate the qualification of this appellant duly sponsored by the 3rd respondent. No door or window was opened at any point. It does not matter whether the appellant is a foundation member of the 3rd respondent or joined shortly before the primaries. As long as the 3rd respondent has accepted him, nominated him and sponsored him, that door is shut and the ship has sailed. – Per J. I. Okoro, JSC

JUDGMENT – CONDUCT OF JUDGES IN GIVING JUDGMENTS

The above scenario, to say the least is a complete mess which is capable of bringing the judicial process to disrepute. A situation where each paragraph of the conclusion of the judgment is a contradiction of the previous one is a complete disaster and makes nonsense of the high office of a Judge. I just want to advise Judges to be more meticulous in doing their job in all cases and more particularly in sensitive cases like a governorship election appeal in order to avoid unnecessarily setting fire to the polity. – Per J. I. Okoro, JSC

 

UNLAWFUL – MEANING OF UNLAWFUL – CONDUCT OF INEC TO UNLAWFUL BALLOT PAPERS – WHERE IT IS PROVED THAT BALLOT PAPERS WERE UNLAWFUL

If they alleged ballot papers are “unlawful ballot papers”, the issue of sorting and categorizing date, stamp, and signature does not even arise. What is unlawful means it is void and unusable for any purpose. Therefore, the unlawful ballot papers must be shown to be strange materials and not the product of INEC for the purpose of the Kano State Governorship election. “Unlawful’ means “not authorized by law; illegal; criminally punishable”. See Per AUGIE, JSC in C.O.P V. OGOR & ORS (2022) LPELR- 57558(SC) (Pp. 15 paras. D-D).

By Exhibit P179, the “unlawful ballot papers” have not been proved to be unlawful since a good number of them were signed and stamped, or stamped and endorsed. To plead that they were not signed, stamped and dated is cumulative and that is not the case herein, and only a negligible number were completely without endorsement. Also, it has not been proved that the Appellant or his agents or voters were responsible for the unlawfulness on the ballot papers.

Furthermore, if they were “unlawful ballot papers”, they ought to have been sorted out or excised polling unit by polling unit and not LGA by LGA since results generated from Polling Units are the foundation upon which every election is predicated. See the case of BUHARI V. INEC (2008) LPELR-814 (SC) PP. 172-173, PARAS.E-D.

“Unlawful ballot papers” relate with Section 115(1)(h) of the Electoral Act, 2022, which provides that “a person who willfully places in any ballot box any unauthorized paper or result form, … commits an offence and is liable on conviction to a maximum term of imprisonment for two years.” However, there was no proof beyond reasonable doubt pursuant to Section 135 of the Evidence Act. – Per U. M. Abba-Aji, JSC

 

COURTS/INEC – CONDUCT OF COURTS/INEC IN VERIFYING OR ACCERTAINING THE VALIDITY OF BALLOT PAPERS USED IN AN ELECTION

If 6824 were signed only, 4347 were stamped only, 146,292 were both signed and stamped, 3936 were dated and stamped, and 1459 were wrongly endorsed at the front and 1886 were without endorsement, it is very clear that what was needed ought to have been the expert evidence of forensic experts, graphologists or handwriting experts and the open denial or admission of INEC on whether the stamps used are not its own, to certify whether the ballot papers upon which these errors were committed are those produced and supplied by INEC or not. Unfortunately, presiding officers of INEC who took part in the exercise or party agents who were present, were not called or did not give evidence to rebuff and contradict the claims alleged by the 1st respondent against the appellant that the stamp and signature used were fake or unlawfully concocted by the appellant, his agents or cronies. In fact, by Section 71 of the Electoral Act, 2022, “the relevant officers… polling agents… police officers…” ought to have been called to testify or give evidence as to the errors that ensued and not to lump it on the appellant or cause the appellant to bear the brunt.

Moreover, it is presumed that the counting of the ballot papers was done in the presence of the party agents, police officers, and other officers of INEC and other observers. See the general provision and direction on counting of votes under Section 60 of the Electoral Act, 2022. It is provided under Section 63 (1) of the Electoral Act, 2022, that ballot papers that do not bear official marks should not be counted. Section 63 (2) further allows for the counting of ballot papers without official mark. Section 65 of the Electoral Act, 2022, provides that the decision of the returning officer on unmarked ballot papers shall be final. We do not have such a decision from the returning officer.

Similarly, it is conspicuously and demonstrably clear that the endorsement of the Presiding officers are over all the dated, signed and stamped ballot papers, except the specific ones that were not signed, stamped or dated by them. If the presiding officers endorsed the ballot papers except the few that are without their endorsements, then they are the vital witnesses to testify on that or the culprits to answer for the corrupt and criminal practices meted on the ballot papers.

In essence, if they are not so proved to be false, strange or improvised ballot papers, used and perpetrated by the Appellant or his agents at his command or instruction, and/or consented and ratified by the Appellant, it means that the 2nd respondent ought to blame and has an answer to this mess or cacophony. Otherwise, it is safely discernable and can be concluded that they were errors committed by the agents of the 2nd respondent, which cannot now work against the appellant or affect his votes, except proved contrarily; which has not been done by the 2nd respondent. – Per U. M. Abba-Aji, JSC

 

ELECTION PETITION – THE PROOF REQUIRED FOR CORRUPT PRACTICES OR NON-COMPLIANCE IN ELECTION PETITION

The proof required for corrupt practices or non-compliance in election petition, be it Presidential, governorship or whichever, has its nucleus, root and basis for proof by polling unit and not by ward or local government areas. – Per U. M. Abba-Aji, JSC

POLLING UNITS – THE WISDOM BEHIND POLLING UNIT BY POLLING UNIT PROOF OR DISPROOF OF ELECTION PETITION

Section 73 (2) is specific about POLLING UNITS and not local government areas to prove or disprove election petition. To refer to LGAs and not polling units is to make general and not specific pleadings, which is not allowed in law. One of the reasons and wisdom behind polling unit by polling unit proof or disproof of election petition is that the wrong committed therein can be excised and cut off without affecting the bigger unit like the ward, local government or State as the case may be, and not to disenfranchise a good number of eligible and valid voters or deny them the, exercise of their civic responsibility. In NWOBODO V. ONOH (1984) 15 NSC 1 @ P. page 23 lines 35-54, it was held that polling stations are the complete foundation on which the pyramid of an election process is built.  – Per U. M. Abba-Aji, JSC

 

BALLOT VOTE – CONDUCT OF INEC & COURTS WHERE A BALLOT VOTE CAST AT AN ELECTION FULLY SATISFIES THE STATUTORY REQUIREMENT OF THE ELECTORAL ACT

In the absence of any pleading (allegation) pertaining to electoral malpractices, over-voting, voter inducement, multiple thumb printing, non-accreditation of voters, forgery of ballot papers, et al, the petition on its face has not warranted a circumstance for the invalidation of the votes cast at the election in question. This proposition has been reiterated by this Court in a plethora of formidable authorities. See BUHARI vs. OBASANJO (2005) 13 NWLR (pt. 941) 1 @ 317; EJIOGU VS. IRONA (2009) 4 NWLR (pt. 1132) 513 @ 560, et al.

The law that has been aptly settled and reiterated in the foregoing authorities, is that once a ballot vote cast at an election fully satisfies the statutory requirement of the Electoral Act, such a ballot vote ought to be deemed a valid (lawful) vote for the purpose of collating (computing) the total valid votes cast at the election in question. – Per I. M. M. Saulawa, JSC

 

ELECTORAL ACT – RESULT FORM AND THE APPLICATION OF SECTION 71 OF THE ELECTORAL ACT – BALLOT PAPERS AND THE APPLICATION OF SECTION 42 OF THE ELECTORAL ACT

The provision of Section 71 of the Electoral Act, 2022 is to the effect:

71. Every result from completed at the ward, Local government, State and national levels in accordance with the provision of this Act or any Guidelines issued by the Commission shall be stamped signed and counter-signed by the relevant officers and polling agents at those levels and copies given to the Police officers and polling agents where available.

Interestingly, the provision of Section 71 of the Electoral Act, 2022 does not make any reference whatsoever to ‘ballot papers’. Undoubtedly, the provision of Section 71 specifically refers to “result form,” to the obvious exclusion of ballot papers and Polling Units.

Conversely, it’s the provision of Section 42 of the Electoral Act, 2022 that actually deals with ballot papers:

42(1) The Commission shall prescribe the format of the ballot papers which shall include the symbol adopted by the Political Party of the candidate and such other information as it may require.

(2) The ballot papers shall be numbered serially with differentiating colours for each office being contested. – Per I. M. M. Saulawa, JSC

 

MEMBERSHIP AND SPONSORSHIP OF A CANDIDATE – CONDUCT OF COURTS TO QUESTIONS OF MEMBERSHIP AND SPONSORSHIP OF CANDIDATES FOR AN ELECTION

Most ironically, however, by the pleading thereof (as contained in the foregoing averments), the question of membership of a political party and sponsorship of a candidate for an election squarely falls within the purview and contemplation of domestic affairs of a political party, thus not justiciable. This proposition of law has been settled and reiterated beyond per adventure by this Court in a plethora of formidable authorities. In one of the recent decisions of this Court, it was aptly held:

The issue of leadership and/or membership of a political party is an internal or domestic affair of a party. It is within the political party’s jurisdiction and is indeed NO GO AREA for Courts, as they lack jurisdiction to delve into such affairs or matters.

See ABDULLAHI VS. ARGUNGU (2023) 11 NWLR (pt. 1895) 289 per Nweze, JSC (of blessed memory) @ 312. See also AL- HASSAN VS. ISHAKU (2016) 10 NWLR (pt. 1520) 230 @ 289; ARDO VS. NYAKO (2014) 10 NWLR (pt. 1416) 591 @ 616; ENANG VS ASUQUO (2023) 11 NWLR (pt. 1896) 501 @ 523. – Per I. M. M. Saulawa, JSC

 

CANDIDATE – WHERE A PARTY CHALLENGES THE CONTENTS OF THE INFORMATION PROVIDED BY A CANDIDATE – DUTY OF PARTIES DESIROUS OF INSTITUTING ELECTION MATTERS IN COURT

Indeed, the law is equally settled, that when a party challenges the contents of the information provided by the candidate in the various nomination forms (e.g. INEC Form EC9), the party is obligated to file his complaint before the election and in strict deference to Section 285(9) of the 1999 Constitution, as amended:

285. (9) Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence if the event, decision or action complained of in the suit.

Undoubtedly, in view of the sui generis nature of election matter vis-a-vis the plethora of decisions of this Court regarding the issue, the provisions of the Interpretation Act have no relevance to the computation of the time limitation provided under Section 285 (9) of the 1999 Constitution, as amended (supra). See OKECHUKWU (2014) 17 NWLR (pt. 1436) 255.

It’s to be reiterated, that due to the fact that election matters are sui generis, time is of the utmost essence. Thus, the provision of Section 285(9) of the 1999 Constitution as amended (supra) does not in any way condone elongation of time for any reason whatsoever. Thus, any party desirous of instituting a matter in Court must do so within the 14 days statutorily allowed under Section 285(9) of the Constitution (supra).

Thus, by the combined effect of Section 285(14)(a) of the 1999 Constitution (supra) and Sections 29(5) and 84(14) of the Electoral Act, 2022, only the Federal High Court is cloaked with jurisdiction, to the exclusion of any other Court or Tribunal, to entertain and determine a pre-election matter.  – Per I. M. M. Saulawa, JSC

 

JUSTICE – DUTY OF JUDGES TO DISPENSE JUSTICE – CONDUCT OF JUDGES IN DISPENSING JUSTICE – THE IMPORTANCE OF CONSISTENTLY UPHOLDING JUSTICE IN A SOCIETY

It’s trite, that justice is God’s divine attributes. As judges, we have the onerously constitutional duty to dispense justice to the parties before us without fear or favour, affection or ill-will, despite all odds…

The self-evident symbolism of the scale held by Justitia in her left hand, and an erect sword in the right, has from time immemorial assumed religious and universal importance…

The fundamental significance of a competent, independent and impartial Judiciary in upholding the rule of law, thereby preserving a virile and decent democratic society, cannot be over-emphasised. Indeed, it’s axiomatic, that public confidence in the independence of the Courts of law, in the integrity of the judges that man such Courts, in the impartiality and efficiency of the administration of justice as a whole, play a vital role in preserving the judicial integrity of a nation. As aptly remarked by the US Supreme Court more than six decades ago, in BAKER VS. CARR (1962):

“The Court’s authority… possessed of neither the purse nor sword… ultimately rests on sustained public confidence in its moral sanction. ”

See BAKER VS. CARR SC. USA (1962) 369 US 186 Per Frankfurter, J (1885-1965). See also DENTON WEST VS MUOMA, SAN (2007) LPELR-8172 (CA) Per Saulawa, JCA (as then was) @ 37-38.

It ought to be reiterated, that where public confidence in the judiciary (the veritable and indispensable Third Arm of Government) is cherishingly high, there would be less likelihood of the citizens resorting to violent self-help agitations, thereby taking the law into their hands.

It’s trite, that judicial independence is essential for fair and just determination of dispute by the Courts. Indeed, it’s the lifeblood of the rule of law and democratic constitutionalism. – Per I. M. M. Saulawa, JSC

 

POLITICAL PARTY – THE POWER OF THE POLITICAL PARTY TO DETERMINE ITS MEMBERS – WHETHER A PARTY SPONSORING A CANDIDATE IS SUFFICIENT PROOF OF THE CANDIDATE’S MEMBERSHIP

Section 177(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). The said provision is set out below:

“177. A person shall be qualified for election to the office of Governor of a State if-

(c) he is a member of a political party and is sponsored by that political party.”

It is therefore not in doubt that membership of a political party and sponsorship by that party is a constitutional requirement to contest for the office of Governor of a State. Nevertheless, it is the law that a party determines who its members are. In post-election litigation, the fact that a candidate, such as the Appellant herein, won the primary election of a party, the party submitted the candidate’s name to INEC and sponsored him at the main election is sufficient proof of the candidate’s membership of the political party. The Court has no jurisdiction to entertain matters bordering on the membership or leadership of a political party. Section 177(c) of the Constitution has not vested Courts with the jurisdiction to interfere in the internal affairs of political parties. See TUMBIDO V. INEC & ORS (2023) LPELR – 60004 (SC).

Furthermore, the issue of sponsorship or membership of a political party is a pre-election matter. That being the case, same must be instituted not later than 14 days from the date of the occurrence of the event, decision or action complained of. See Section 285(9) of the Constitution. Similarly, the issue can only be raised by a member of the affected political party who was an aspirant in the primary election that produced the candidate. See Section 285(14) of the Constitution and Section 84(14) of the Electoral Act, 2022 as well as the cases of PDP V. INEC & ORS (2023) LPELR – 60457 (SC); NDUKWE V. AYU (2022) LPELR – 58905 (SC). – Per Adamu Jauro, JSC

 

REGISTER – WHETHER A POLITICAL PARTY CAN UPDATE ITS REGISTER AFTER SUBMITTING THE REGISTER TO INEC – WHETHER A CANDIDATE WHOSE NAME IS NOT ON THE REGISTER OF MEMBERS SUBMITTED TO INEC IS DISQUALIFED

In ENANG V. ASUQUO (2023) 11 NWLR (PT. 1896) 501 at 536, para. G, his Lordship, Kekere-Ekun, JSC stated thus:

“I also agree with their Lordships that Section 77(3) of the Act does not preclude a political party from updating its register after submission.”

Thus, assuming the tribunal even had jurisdiction to consider the appellant’s membership or non-membership of the 3rd Respondent, in the absence of any evidence that the Appellant was not a member of the 3rd Respondent at the relevant time, the decision of the Court below was reached in error.

It should also be noted that there is nothing in Section 77(3) of the Electoral Act that disqualifies a candidate whose name was not in the register of members submitted to INEC in compliance with the Subsection. – Per Adamu Jauro, JSC

 

BALLOT PAPERS – WHETHER THE FAILURE OF THE POLLING UNIT PRESIDING OFFICER TO STAMP, SIGN, AND DATE THE BACK OF EACH BALLOT PAPER CAN BE RELIED ON TO CHALLENGE THE VALIDITY OF THE VOTES CAST AT AN ELECTION

Let me also consider the decision of the Court of Appeal concurring with the decision of the Kano State Governorship Election Tribunal invalidating vote with ballot papers that were not stamped, signed and dated on the back by the relevant Polling Unit Presiding Officer as required by Regulation 19 (f) (11) of the Regulations and Guidelines for the Conduct of Elections 2022 which provide that “The accredited voter shall proceed to the Presiding Officer who shall …On being satisfied that the person before him/her has been duly accredited, stamp, sign and write the date of the election on the back of the ballot papers for the respective categories of elections”

The said ballot papers having been counted as valid votes in the election, the failure of the Polling Unit Presiding Officer to stamp, sign and date the back of each of them, cannot be relied on without more to challenge the validity of the voted cast by the said ballot papers. The only valid or competent complaint that can be made at this stage is that the decision of the Presiding officer or returning Officer allowing the counting such ballot papers as valid votes is wrong because the said ballot papers were not from the booklet of ballot papers furnished to the Presiding to the Presiding Officer of the polling unit for use in the election in that unit. This is so by virtue of Section 63 (1) and (2) of the Electoral Act 2022 which provides thusly-

“1. Subject to Subsection (2) A ballot paper which does not bear official mark prescribed by the Commission shall not be counted

2. If the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the presiding officer of the polling unit in which the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper”. –Per E. A. Agim, JSC

 

TRIBUNAL – WHETHER THE TRIBUNAL HAS THE POWER TO DECLARE VOTES INVALID FOR THE MERE REASON THAT THEY ARE UNMARKED BALLOT PAPERS

The Tribunal does not have the jurisdiction or power to declare votes invalid for the mere reason that they are cast by unmarked ballot papers. Once the unmarked ballot paper have been allowed to be counted, the decision to allow such votes to be counted can only be challenged on the ground that the discretion of the returning officer was improperly exercised in that the requirements prescribed in S.63(2) of the Electoral Act for allowing such votes to be counted were not satisfied. The election tribunal can only find out if that discretion was properly exercised and nothing more. That is the power given it by S.64 of the Electoral Act 2022. – Per E. A. Agim, JSC

 

SECTION 71 OF THE ELECTORAL ACT – THE APPLICATION OF S.71 OF THE ELECTORAL ACT

S.71 of the Electoral Act 2022…

It is glaring for the provisions of S.71 that it does not apply to ballot papers as the only election document mentioned therein and which applies is the result form. It did not mention ballot papers.

By mentioning result forms therein, it excluded from its application other election documents such as ballot papers. It is trite law that the express mention of certain things in a statute, excludes those not mentioned therein from the scope of its application. – Per E. A. Agim, JSC

 

HEARSAY – MEANING OF HEARSAY EVIDENCE – CONDUCT OF COURT TO HEARSAY EVIDENCE

The Court cannot adopt the opinion of a person concerning documentary evidence before it without itself considering that evidence and drawing its own inferences from it. Such opinion on the content of a document (ballot papers) not made by the person expressing it (PW32) is hearsay and not admissible. S.37 of the Evidence Act 2011 defines “Hearsay” to mean a statement

“(a) oral or written made otherwise than by a witness in a proceeding; or

(b) Contained or recorded in a book, document or any record, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.” His entire testimony in examination in chief is hearsay evidence and S.38 of the Evidence Act states that it is inadmissible evidence. See Oyetola & Anor V INEC & Ors (SC/CV/508/2023 of 9-5-2023). – Per E. A. Agim, JSC

 

INTERESTED – WHERE A PERSON IS DEEMED TO BE ONE WHO IS INTERESTED IN A MATTER – CONDUCT OF COURT TO EVIDENCE OF A PERSON WHO IS INTERESTED IN A MATTER

In Anyaebosi V V.R.T, Briscoe (Nig) Ltd (1987) 3 NWLR 84, this Court held that the likelihood that the maker of a report is tainted by the incentive to conceal or misrepresent facts, renders him a person interested. Uwais JSC (as he then was) construed “interested” within the context of Section 91 (3) of the Evidence Act as including the likelihood that the maker is tainted by incentive to conceal or misrepresent facts. The report was clearly prepared for a purpose and specifically for the purpose of supporting the case of the Petitioner before the Election Tribunal. The Report is pleaded, paving way for its entrance into the Election petition. The palpable and undeniable desire of every normal human being, and particularly so in Nigeria, who contest in an Election is to win. Thus knowing the extent of his interest, the Petitioner erred irretrievably when he commissioned his agent to be inspector/investigator, his reporter and witness after obtaining the Order of the Tribunal to inspect. It was the Petitioner, rather than the trial Tribunal who erred on this score…

The report having been made by PW32 as a person interested in the subject matter of the report when the petition was anticipated to establish that the appellant was not elected by majority of lawful votes cast as some of the votes were cast with marked ballot papers is not admissible evidence by virtue of Section 83(3) of the Evidence Act, 2011 (as amended) which provides as follows:-

“Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

PW32 as agent of the petitioner, made the report in furtherance of the interest of the petitioner in the petition. Therefore, he was not acting professionally and clearly had personal interest in the outcome of the petition. He did not make Exhibit P169 in the course of his official or statutory duty or as an employee in the usual course of his employment. If his interest were purely official or as a servant without being partisan, then he would not be treated as person interested within the terms of Section 83 (3) of the Evidence Act. See also High grade Maritime Service Ltd V. First Bank Nig. Ltd (1991) 1 SC (pt. 11)26 and Nigeria Social Insurance Trust V. Klifco Nig. Ltd (supra). – Per E. A. Agim, JSC

 

OPINION EVIDENCE – ADMISSIBILITY OF OPINION EVIDENCE

Opinion evidence is legally inadmissible evidence by virtue of S. 67 of the Evidence Act 2011 which provides that: “The opinion of any person as to the existence or non-existence of a fact in issue or relevant to the fact in issue is inadmissible except as provided in Sections 68 to 76 of this Act.” The exceptions in Ss. 68 to 76 are in respect of opinion on point of foreign law, customary law or custom, science or art, identity of handwriting, finger impressions and relationship of one person to another.  – Per E. A. Agim, JSC

EXPERT WITNESS – WHERE AN EXPERT WITNESS IS DEEMED NECESSARY – WHERE THE EVIDENCE GIVEN BY AN EXPERT CANNOT BE CLASSIFIED AS EXPERT EVIDENCE – CONDUCT OF COURTS TO EXPERT WITNESSES WHO ADMIT TO BEING PAID FOR THEIR SERVICES AS WITNESSES – CONDUCT OF EXPERT WITNESSES

This Court in Egesimba v. Onuzurike II NSCQR 588 at 643, held per Tobi JSC that “An expert witness is only necessary if by the nature of the evidence scientific or other technical information which is outside the experience and daily common knowledge of the trial Judge as Judge of facts is required. In Omisore v. Aregbesola (2015) 15 NWLR (part 1482)205, this Court held per Ngwuta, JSC that “Parties to election petitions in desperation to win their cases, employ the so-called experts believing that their mere description as experts elevated their evidence to a pedestal higher than the evidence of ordinary witnesses. One of the so-called experts was frank enough to say that the evidence he gave could be given by any literate person. From the record, PW15 and PW38 dubbed as ‘expert’ are experts bereft of any expertise.”

Ogunbiyi JSC at pp 325 – 236 also held that:

“The witnesses, PW15 and PW38 made their personal observation on the election materials. Their evidence cannot be classified as expert evidence within the meaning of Section 68(1) of the Evidence Act, 2011. Consequently, PW15 and PW38 are not experts as rightly submitted by the respondents’ Counsel. See the case of Attorney General v. Abubaker (2008) 2 C.C.L.R. 483; (2008) 16 NWLR (pt…).. see also A.N.P.P. v. Usman (2008) 12 NWLR (pt 100)1 at 67-68.”

On the absence of scientific criteria in the so-called expert’s report, Nweze, JSC, held at pp. 283-284 that-. The trial Tribunal found “no scientific or technical information contained in the reports submitted by PW15 and PW38. While they may be experts in their respective fields, no such expertise is exhibited in these reports. They simply, looked at the electoral materials brought out facts therefrom. Their reports and themselves would therefore be treated not as expert evidence/witnesses.’

In Omisore v. Aregbesola (2015)15 NWLR (part 1482) 205, the Supreme Court further held at p. 299 thusly:

“These witnesses agreed that any literate person can look at the documents considered by them and make observations. they admitted that they were paid for the job carried out by them on behalf of the appellants… it was not surprising that the Tribunal, as well as the Court below, did not place serious premium on their evidence. Same was in tune with the position in the decision of Sule v. Lamido (2012)8 NWLR (pt 1303) 560.”

In Agballa V. Nnamani 2 EPR 757 at p.773 – 774 this Court per Dongban-Mensem, JCA held thusly: “An Election petition is a clear dispute between contesting parties as between the one declared the winner of the election and the one who contests the declaration being the loser at the election. By his own testimony, PW1 who was the Agent to the Petitioner also prepared the Report. Certainly, we need not consult an oracle to know that the maker of the report is an interested party. The report, “Rejected A”, is naturally suspected to be colored with the preferential conclusions and permutations of PW1. In the case of Anyaebosi V. V.R.T, Briscoe (Nig) Ltd (Supra).

It is glaring from the testimony of PW32 that he was not detached, independent and non-partisan and really was interested in the case goes”. In Akeredolu, SAN & Anor v. Dr. Mimiko (2013)8 S.C 85, the Supreme Court per Ngwuta JSC held that:

“when an expert witness, by his own ipse dixit, portrays himself as one hawking his evidence or a mercenary who would fight any man’s battle for a fee as it were, gives evidence in Court, the Court has a duty to treat his evidence with the disdain it deserved. After all as the “saying goes, he who pays the piper dictates the tune of the music.”

Peter-Odili JSC held that:

“It is extant in the record that PW34 referred to by the appellant as its expert witness’ confirmed that he was contracted ‘for a fee’ to carry out the assignment after the petition was filed. He was not in Zamfara State on the day of election. It is clear that the report – Exhibit P72 put up by PW34 ‘for a fee’ was designed to ‘steal the show’ as it were. It is not safe to rely on the evidence of PW34 and his report in Exhibit P72. See the case of Seismograph Services v. Akporuovo (1976)6 S.C 119 at 136.”

In Whitehouse v. Jordan (1981)1 ALL ER 267, the English House of Lords per Lord Wilberforce held that:

“… it is necessary that expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that is not, the evidence is likely to be not only incorrect but self defeating.”

See also Nigeria Social Insurance Trust V Klifco Nig. Ltd(2010) 13 NWLR (pt.1211) 307 SC, High grade Maritime Service Ltd V. First Bank Nig. Ltd (1991) 1 SC (pt.11) 26 and Kelly v. London Transport Executive (1982) 2 ALL ER 842, per Lord Denning, M.R. at p.851.” – Per E. A. Agim, JSC

 

ELECTION – WHETHER IT CAN BE CHALLENGED THAT A PERSON WHO CONTESTED A GENERAL ELECTION IS A MEMBER OF THE PARTY THAT SPONSORED HIM – WHETHER ANOTHER POLITICAL PARTY CAN CHALLENGE THE ACTION OF A PARTY PRESENTING AN INDIVIDUAL AS ITS CANDIDATE FOR AN ELECTION – WHETHER COURTS HAVE JURISDICTION OVER INTERNAL AFFAIRS OF PARTIES

Let me state straight away that it is absurd and unreasonable to contend that a person, who bought and filled a Political Party’s forms for expression of interest to contest its primary election of its candidate for an election and the Party’s forms for nomination as an aspirant in the said primary election, who contested and won the said Party’s primary election, whose name was submitted by the Political Party as its candidate for the election and who won the election, is not a member of the same political party that sponsored him for the election because his name is not in the Party’s membership register submitted to INEC before the election, even though he/she has the party’s membership card. Once a person has contested the election of Governor of a state as a candidate of a political party, it can no longer be validly contended that he is not a member of the political party that sponsored him as its candidate for the election or that he was not sponsored by the party on whose platform he contested the election as its candidate. Such a contention is false and idle. The fact that he/she contested the election as a candidate of a political party is conclusive proof that he is a member of that political party and was sponsored by that political party and that he/she was therefore qualified for that election in keeping with S.177(c) of the 1999 Constitution of Nigeria that has the object of not allowing independent candidates in the election of Governor of a State in keeping with the tenor of the 1999 Constitution as a whole and therefore makes it impossible for independent candidates to qualify for such election. Therefore that provision cannot be used to open up an inquiry into the basis of the claim by a political party that a person it sponsored as its candidate for an election is its member or whether such claim is true or false. It is only a political Party and/or its members that can say who is its member or not. Once it acknowledges or presents a person as its member, that is final and conclusive, especially against outsiders. Another political party cannot challenge the action of a political party acknowledging or presenting a person as its member. That is its internal affair and is not open to question by outsiders. Courts lack the jurisdiction to determine the internal affairs of a political party such as its acknowledgement of a person as its member. An election Tribunal has no jurisdiction to go behind a political party’s acknowledgment or presentation of a person as its member to find out if such presentation or acknowledgment by the political party is false or not. This Court has restated in a long line of cases that Courts have no jurisdiction over the internal affairs of a political party except where a statute expressly gives a Court jurisdiction to deal with any internal affair of a political party. In Oni V Oyebanji (supra) this Court held that “The clear provisions of S.177(c) of the 1999 Constitution do not provide for considerations of how a political party arrived at the decision to sponsor a person as its candidate or the validity of the decision to sponsor or the validity of the sponsorship itself. The fact that a member of the political party is sponsored by it as its the clear provisions of S.177(c) of the 1999 Constitution do not provide for considerations of how a political party arrived at the decision to sponsor a person as its candidate governorship candidate for the general election makes such a person automatically qualified for election to the office of Governor of a State. See also Onuoha v. Okafor (1983) 2 SCNLR 244 at 254, Emenike V PDP (2012) 12 NWLR (Pt. 1315) 556, Jegede & Anor V INEC & Ors (SC/448/2021 delivered on 28-2021), Chief Jude Okeke v. APGA & Ors (SC/CV/686/2021 & SC/CV/687/2021 delivered on 14-10-2021), Amaechi v. INEC (2007) 9 NWLR (PL 1040) 504, Igo Aguma v. APC (SC.217) 4 NWLR (Pt. 1555), Dahiru v. APC (201 218 AT 243, Ufoma v. INEC (2017) 13 NWLR Pt 1582 175, Sherif v. PDP (2017) 14 NWLR (Pt. 1585) 212 at 318-39, Agi v. PDP (LPELR) 42578 (SC), Dalhatu v. Turaki, Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt 1275) 30, PDP v. Sylva (2012) 3 NWLR (Pt. 1316) 85. – Per E. A. Agim, JSC

CASES CITED

Non Available

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Evidence Act, 2011
3. Electoral Act, 2022
4. Regulations and Guidelines for the Conduct of Elections 2022
   

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