Congress For Progressive Change V. Independent National Electoral Commission & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.

The 1st respondent in this appeal, the Independent National Electoral Commission in accordance with its constitutional role in the process of building a democratic society, conducted an election into the offices of the President and Vice-President of the Federal Republic of Nigeria on the 16th of April, 2011. Congress for Progressive Change (CPC), now the appellant was one of the twenty political parties which contested the election sponsoring General Muhammadu Buhari as its presidential candidate and Pastor Babatunde Bakare for the post of Vice President. The 5th respondent, Peoples Democratic Party (PDP) also a candidate in the election had Dr. Goodluck Ebele Jonathan as the flag bearer for the office of President and Architect Namadi Sambo as Vice President. At the conclusion of the voting exercise, PDP scored 22,471,370 votes and Congress for Progressive Change (CPC) had 12,211,670 votes. As a result of the foregoing votes, INEC declared PDP and its candidates as winners of the election. Thereupon Dr. Goodluck Ebele Jonathan and Architect Namadi Sambo became the President and Vice President of the Federal Republic of Nigeria having scored the highest number of votes cast at the election and the mandatory one quarter of the votes cast in each of at least two thirds of all the States in the Federation and in the Federal Capital Territory, Abuja in compliance with the constitutional provision. Vide Section 134 (2) of the Constitution of the Federal Republic of Nigeria. Congress for Progressive change was aggrieved with the conduct of the election and the return of the 3rd and 4th respondents, challenged the validity of the entire election by presenting a petition before the Court of Appeal Abuja on 8/5/2011. In the petition it joined INEC with all the principal officers, like Chief Electoral Commissioner and the Chief Returning Officer in all the States of the Federation.

The reliefs sought before the trial court are at paragraph 40 Vol.1 of the Record pages 68-69 of the Record of Appeal. They read as follows:

Wherefore the petitioner prays that it may be determined as follows –

(i) That it may be declared that the election and the return of the 3rd and 4th respondents who were sponsored by the 5th respondent is voided by corrupt practices and substantial non-compliances with the relevant provisions of the Electoral Act 2010 as amended.

(ii) That it may be declared that the 3rd and 4th respondents who were sponsored by the 5th respondent were not duly elected in respect of Kaduna, Sokoto, Nassarawa, Kwara, Adamawa, Abia, Akwa Ibom, Enugu, Cross River, Rivers State, Ebonyi, Bayelsa, Delta, Imo, Anambra, Benue, Lagos, Plateau States and Federal Capital Territory, Abuja.

(iii) That it may be determined that the 3rd respondent did not fulfill the requirements of Section 134 (2) of the Constitution of the Federal Republic of Nigeria with regards to:-

(a) Scoring the highest number of votes cast at the election and

(b) Mandatory one quarter of the votes cast at the election in each of at least two third of all states in the Federation and in the Federal Capital Territory, Abuja

(iv) That it may be determined that the result declared by the 2nd respondent on the 18th day of April, 2011 by which the 3rd respondent was returned as the elected President of Nigeria is wrongful, invalid and unlawful.

(v) A declaration that the presidential election for the office of the president held on the 16th day of April, 2011 did not produce a winner as contemplated by the provision of the constitution of the Federal Republic of Nigeria 1999.

(vi) An order directing the 1st and 2nd respondents to arrange another election between the petitioner and the 3rd respondent in conformity with the provision of section 134 (4) or such other relevant provisions of the constitution of the Federal Republic of Nigeria as amended.

The respondents filed their respective responses by way of their defence to the petition. Vide Vol.2 pages 469 – 703, Vol. 3 pages 848 – 1120, Vol. 3 pages 1121 to 1405.

The trial court struck out reliefs 4 and 6 in the Ruling delivered on the 14th of July 2011 (Vide vol. 3 pages 824 – 830 of the Records of Appeal). The petition went on trial on Reliefs 1, 2, 3, and 5 only. At the conclusion of trial, parties adopted the written addresses filed by them. In a lucid and well considered judgment of the court below delivered on the 1st of November, 2011, the learned justices of the lower court dismissed the appellant’s petition by making order as follows-

“The election of the office of President and vice president Federal Republic of Nigeria held on 16/4/2011 has not been successfully challenged. The 3rd and 4th respondents scored the majority of lawful votes cast at the election and secured the mandatory one quarter of the votes cast at the election in each of at least two thirds of all the states in the Federation and in the Federal Capital Territory, Abuja.

Consequently the 3rd and 4th respondents won the election conducted by the 1st respondent on the said 16th April, 2011 and were returned by the 4th respondent as duly elected President and Vice President respectively of the Federal Republic of Nigeria. The petition fails in its entirety and it is hereby dismissed.”

Being aggrieved by the decision of the lower court, CPC filed an appeal to this court. It also sought an appeal against various rulings of the court delivered during the pre-hearing session and the entire proceedings in the course of hearing of the petition. The appellant raised twenty five grounds in the notice of appeal filed.

At the hearing of the appeal on the 13th of December 2011, the appellant adopted and relied on four briefs filed as follows –

(a) The appellant’s brief filed on 28/11/11

(b) A reply to 1st, 2nd, 6th – 42nd respodnents’ brief field on 5/12/11.

(c) A reply to the 3rd and 4th respondents’ brief filed on 5/12/11.

(d) A reply to the sin respondent’s brief filed on 7/12/11.

Three issues were formulated for determination in the appellant’s brief which are –

(1) In view of the sui generis nature of an election petition, whether the evaluation of evidence by the court below and its decision on burden of proof were not wrongful and led to grave miscarriage of justice.

(2) Inspite of the state of pleadings and evidence before the lower court whether it was right for the court below to have held that there was substantial compliance with the Electoral Act 2010 (as amended) and that the declaration of 3rd and 4th respondents as duly elected was constitutional.

(3) Considering the evidence before the trial court and vis-a-vis the several rulings whether it can be said that the conduct of the trial court was done in a manner consistent with appellant’s right to fair hearing.

The 1st, 2nd, 6th – 42nd respondents adopted and relied on the respondents, brief filed 1/12/11, where five issues were settled for determination in this appeal which read as follows:-

(1) Whether the learned justices of the Court of Appeal applied the correct principle of law in evaluating the evidence led at the trial and in holding that the 3rd and 4th respondents were duly elected.

(2) Whether the learned justices of the Court of Appeal were correct when they held that the burden of proof in the case was on the appellant to establish that the election was vitiated by non-compliance with the provisions of the Electoral Act 2010 (as amended).

(3) Whether the learned justices of the Court of Appeal were correct in rejecting the documents tendered by the appellant and in not pronouncing on the rejected documents in their judgment.

(4) Whether the learned justices of the Court of Appeal denied the appellant the rights to fair hearing by virtue of the Ruling delivered on 6th and 22nd September 2011.

(5) Whether the learned justices of the Court of Appeal were correct when they set aside the subpoena which the appellant abandoned.

In the brief filed on 2/12/11, the 3rd and 4th, appellants distilled two issues for determination which read as follows-

1) Having regard to the clear provisions of Section 131 (1) and (2), 132 and 133 (1) of the Evidence Act read together with Section 139 (1) of the Electoral Act 2010 (as amended) and considering several appellate court decisions on the question of burden of proof whether or not the decision of the lower court on where and when the burden of proof in the petition before it was situated can be faulted.

2) Considering the evidence led in support of the state of pleadings as well as the way and manner the lower court carefully and painstakingly weighed and analysed the evidence given, whether:

(1) The lower court was not right in dismissing the petition.

(2) Appellant’s right to fair hearing was breached.

The 5th respondent adopted and relied on the brief deemed filed on 13/12/11. The 5th respondent distilled two issues for determination in the brief namely-

(a) Whether having regards to the evidence adduced by the appellant/petitioner vis-a-vis the respondents, the lower court was right to have dismissed the petition on the ground that the appellant failed to prove the allegations of crime contained in the petition beyond reasonable doubt and/or non-criminal allegations on the balance of probability or preponderance of evidence as required by law,

(b) Whether having regards to both oral and documentary evidence adduced by the appellant in relation to the facts and circumstances of the appellant’s case, it would be right to say that the appellant was denied fair hearing.

Chief Awomolo learned senior counsel directed the court’s attention to the notice of preliminary objection filed to some of the grounds of appeal, already argued in the brief. Chief Olanipekun, learned senior counsel for the 3rd and 4th respondents also towed the same line.

On a close scrutiny of the briefs filed by the 1st, 2nd, 6th – 42nd respondents and the 3rd and 4th respondents, I observed that the grounds of objections are not only identical; they also raised similar terminal legal defects. In that situation, it is imperative on the court to first hear and determine such preliminary issues. If they are found to be defects in the competence of those grounds of appeal and the issues formulated from them the resultant effect is to deprive this court of the power of adjudication on them. Any defect in competence is extrinsic to adjudication. The preliminary objection raised by Chief Awomolo, SAN to the notice and grounds of appeal are as follows-

(1) The notice of appeal is defective in as much as it reflects that the appeal relates to Rulings delivered in the course of the hearing of the petition.

(2) Grounds 7, 10, 13 and 17 of the grounds of appeal are appeals against interlocutory decisions of the Court of Appeal over which previous notices of appeal were filed and with respect to decisions delivered over a period of sixty (60) days within which an appeal shall be determined.

(3) Ground 14 and 16 of the notice and grounds of appeal do not arise from the decision of the Court of Appeal.

In the preliminary objection raised by Chief Olanipekun SAN, this court is persuaded to strike out grounds 7, 10, 12, 13, 14, 15 and 17 of the appellant’s ground of appeal as well as the issues and arguments thereon in the appellant’s brief of argument. The grounds of the objection of both sets of respondents challenged the competence of the notice of appeal as they cover the judgment of the lower court delivered on 1/11/11 and several unspecified rulings of the same court delivered on unspecified dates.

On gleaning through the Records of appeal, the rulings of the lower court delivered during the proceedings at the hearing of the petition by the trial court came on various dates like 6/11/11 at pages 2422-2427 of the Record; 15/9/11 at page 2455 of the Record; 28/9/11 on pages 2567-2570 of the Record. The appellant filed notice of appeal in respect of these interlocutory Rulings. These are the Rulings reflected in grounds 10, 12, ground 13 (1)- (iv), grounds 14 and 15. Grounds 7, 10, 12, 13, 14, 15 and 17 are statute barred being in breach of Section 285 (7) of the Constitution of the Federal Republic of Nigeria and Section one of the practice Directions [Election Appeals to the Supreme Court]. The contention also is that any issue distilled from the incompetent grounds must equally be struck out because an incompetent ground of appeal cannot give rise to a competent issue for determination. Issue No. 3 raised from these incompetent grounds of appeal is afflicted by the same incompetence and must suffer the same fate.

Cases were cited in support of the submission –

Akpan v. Bob (2010) 17 NWLR (pt.1223) 421 at 493.

Amadi v. Orisakwe (1992) NWLR (pt.511) pg. 161.

Fagunwa v. Adibi (200 4) 17 NWLR (pt.903) pg.544.

People Democratic Party (PDP) v. Congress for Progressive Change (CPC) & Ors consolidated, appeals SC.272/2011 and SC.226/2011 delivered on 31/10/11.

Finally the learned senior counsel drew the attention of this court to the fact that the appellant has presented notice of appeals without dates and particulars or specifications contrary to Order 8 of the Supreme Court Rules. The said notice of appeal is incurably bad and the court is urged to strike it out. In addition to the foregoing submission, Chief Awomolo SAN concluded that these appeals lapsed on the 6th, 17th and 22nd of November 2011 respectively and they cannot now legally arise for determination. Grounds 14 and 16 did not arise from the decisions appealed against. It is trite that a ground of appeal must arise from live issues at the trial and must challenge the ratio of the decision. He cited:

Osuji v. Ekeocha (2009) 16 NWLR (pt.1166) pg.81 at pg.122.

Babalola v. State (1989) 4 NWLR (pt.115) pg.264.

It is apt and proper for the determination of the legal questions raised in these objections to have an insight into the relevant laws,

Section 285 (7) of the 1999 constitution (as amended) reads –

“An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed off within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal.”

Section one Practice Directions [Election Appeals to the Supreme Court] No. 33 of 2011, Federal Republic of Nigeria Official Gazette Vol. 98 reads –

“The appellant shall file in the Registry of the Court of Appeal his notice and grounds of appeal within 14 days from the date of the decision appealed against.”

The simple, straight forward, unambiguous words used in the foregoing provisions show that Section 285 (7) of the 1999 Constitution (as amended) and Section one of the Practice Directions are Limitation Laws.

Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus an action instituted after the expiration period of the prescribed period is said to be statute barred.

Osun State Government v. Dalami Nigeria Ltd. (2007) All FWLR (pt.365) pg.438.

Jallco Ltd. V. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (pt.391) pg. 531 at 538.

Where the limitation of time is imposed in a statute, decree or edict unless the said statute, decree or edict makes provision for extension of time, the courts cannot extend the time. An action filed outside the period will lapse due to effluxion of time. This is the fate of the interlocutory appeals raised in grounds 7, 10, 12, 13, 14, 15 and 17 of the notice of appeal. They are all statute barred and cannot be legally resuscitated. Issue number 3 which is formulated from these grounds must go with them. Any grounds of appeal which do not arise from the ratio of the judgment appealed against equally cannot stand for reason of in competency. The preliminary objection is sustained and the incompetent grounds and issue are struck out. I observe that issues 4 and 5 in the issues for determination in the brief of the 1st, 2nd, 6th – 42nd respondents are formulated from grounds 7, 10 and 17 of the appellant’s already struck out. These issues also have no legs to stand on; they are consequently struck out. Issue No.3 of the appellant’s brief is struck out.

It is noteworthy that the learned senior counsel for the 3rd and 4th respondents in paragraphs 2.1 of the respondents submitted that –

“Appellant conceded at the lower court that its petition was restricted to the issue of non-compliance.”

At page 2843 before presenting his issues for determination to the lower tribunal, learned senior counsel for the petitioner conceded that no evidence was adduced on the allegation of crime which he alleged in the petition – the court was persuaded to decide the petition on the balance of probability. This will obviously have an impact on the scope of issue one which challenged the evaluation of evidence and the decision of the lower court on burden of proof which were alleged to be wrongful and led to grave miscarriage of justice.

The germane issue for determination is now issue No. 2 which reads-

“Inspite of the state of pleadings and evidence before the lower court whether it was right for the court below to have held that there was substantial compliance with the Electoral Act 2010 (as amended) and that the declaration of the 3rd and 4th respondents as duly elected was constitutional”.

The submission of the appellant is that the election petition is generally considered to be sui generis, this court must look for guidance in its decision primarily within the four walls of the Electoral Act and it is only when this is lacking can the court fall back on the relevant court rules and case law. The position of the law in election is not totally the same with ordinary civil cases. The lower court used double standards in the evaluation of the evidence of the appellant and the respondents. The court held in the judgment that a litigant can take advantage of the evidence of the opponent which supports its case when holding that the failure of the 1st set of respondents to call evidence did not totally rob them of defences that they could garner from the lapses in the case of the appellant. The court held that it did not have to undertake a detailed evaluation of the respondents’ evidence because the onus of proof has not shifted. This court is to treat this petition as a civil claim which requires proof on the balance of probability or preponderance of evidence – section 134 of the Evidence Act. The appellant had discharged the burden of proof in Section 133 (1) and (2) of the Evidence Act to establish that the presidential election conducted on 16/4/2011 by the 1st respondent was not conducted in compliance with the Electoral Act. Particularly that the election was marred by non-accreditation of voters, entry of wrong figures in forms EC8A, EC8B and EC8C, arbitrary allocation of scores in favour of the 3rd respondent, non supply/excess supply of electoral materials/use of fake ballot papers printed by a company owned by stalwarts of the 5th respondent which was used to conduct election in the North West, North Central, South East, South South and South West of the country and the Federal Capital Territory, Abuja. The 1st, 2nd, 6th – 42nd respondents have woefully failed to discharge the burden of proof placed on them to show their non-compliance with the provisions of the Electoral Act did substantially affect the result of the election.

The 1st, 2nd, 6th – 42nd respondents abandoned substantial portions of their pleadings including statutory documents of their pleadings such as forms EC8A, EC8B, EC8C and EC825. Also voters Register used in the accreditation of voters which were pleaded and made part of their Reply on which they had pleaded that the election was not conducted in compliance with the provisions of the Electoral Act by refusing to call evidence in support of the averments in these pleadings.

The appellant further submitted that in view of the failure of the 1st, 2nd, 6th – 42nd respondents to call evidence to show that non-compliance above did not substantially affect the result of the election; the burden placed on the appellant by law is to prove its case by minimal evidence.

The 3rd, 4th and 5th respondents who are the beneficiaries of the conduct of the election in violation of the provisions of the Electoral Act by the 1st, 2nd, 6th – 42nd respondents have equally failed to establish by credible evidence that the election in which they were said to be victorious was conducted in accordance with law. The court is urged to allow the appeal.

The learned senior counsel, for the 1st, 2nd and 6th – 42nd respondents Dr. Ikpeazu, argued the issue of evaluation of evidence and burden of proof together with the 2nd issue alleging that the 1st, 2nd and 6th – 42nd respondents failed to call evidence to show that non-compliance did not substantially affect the result of the election. The learned senior counsel restated the pleadings of the appellant particularly the prayers. The 1st, 2nd and 6th – 42nd respondents joined issues with the appellants in their joint brief and produced the relevant portions specifically pleaded. They went over category of witnesses called by the appellant and the nature and quality of their evidence. The respondents called enough witnesses to rebut the allegation that collation was improperly done. Since all the front loaded documents of the respondents were tendered by the appellant and having availed it the opportunity to obtain all the documents with which it intended to prove its case, the 1st, 2nd and 6th – 42nd respondents stopped calling witnesses.

The respondents relied on three processes to establish their pleadings –

1. Cross-examination of witnesses.
2. Evidence of three witnesses with respect to three States.
3. Documentary evidence which were all certified and carried the presumption of regularity and which relate to all the States in contention as well as others.

These respondents urged this court to hold that the lower court applied the correct principle of law in evaluating the evidence led at the trial court and holding that the 3rd and 4th respondents were duly elected. That the burden of proof was on the appellant to establish that the election was vitiated by non-compliance with the provisions of the Electoral Act.

The learned senior counsel for the 3rd and 4h respondents, Chief Olanipekun submitted that although the petitioner did not adduce any evidence to warrant assuming responsibility for any shift of burden of proof, the 3rd and 4th respondents still called 22 witnesses who gave uncontradicted evidence that the presidential election was free and fair. The nature of the petitioner’s case completely omitted the 3rd and 4th respondents whose election is being challenged. The appellant devoted the entirety of its brief to attacking the alleged weakness in INEC’s case. The petitioner failed to properly package his case under Section 139 (1) of the Electoral Act. The evidence of witnesses produced to establish non-compliance failed to do so in any manner. The 3rd and 4th respondents submitted that after striking out relief 6 granting the other reliefs would amount to making an unenforceable order. The entire appeal has not only become academic but also abusive of the processes of court. Page 2856 of the Record shows a dispassionate review of the evidence. At pages 2837-2840, the lower court gave detailed and graphic analyses of the witnesses who testified for the appellant and the sets of respondents. At pages 2844-2845, the lower court identified the issues formulated by the parties. The court is urged to dismiss the appeal. The learned senior counsel made reference to an avalanche of cases – sixty-seven of them in number.

The learned senior counsel for the 5th respondent in his submission laid emphasis on the position of law on the burden of proof. The learned senior counsel restated sections 131, 132 and 133, 134 and 135 of the Evidence Act 2011 (as amended) and cited the case of Imonikhe v. Unity Bank Plc (2011) NSCQR (Pt.2) pg.554 at pgs.575 – 576

The appellant has failed woefully to show that the presidential election held on the 16th day of April, 2011 was conducted in non-compliance with the provisions of the Electoral Act 2010 and how such non-compliance with the provisions of the Electoral Act 2010 has substantially affected the result of the election. The court is urged to refuse the relief sought by the appellant and dismiss this appeal.

I have painstakingly considered the submission of all the parties in this appeal. The issue for determination has been narrowed down principally to issue No. 2 in the appellant’s brief which is that –

“Inspite of the state of pleadings and evidence before the lower court, whether it was right for the court below to have held that there was substantial compliance with the Electoral Act 2010 (as amended) and that the declaration of 3rd and 4th respondents as duly elected was constitutional. ”

I cannot close my eyes to issue of wrongful evaluation of evidence by the court below and its decision on burden of proof raised under-issue one. I am mindful of the fact that these factors are part of the legal points for consideration under the issue about non-compliance. I intend to elaborate on them under issue 2 for the avoidance of repetition. It strikes me as odd that throughout the conduct of the case in the petition, the appellant viciously pitched its tent against INEC to the neglect of his real foes; the 3rd, 4th and 5th respondents who deprived it of the victory at the polls and office of the President of the Federal Republic of Nigeria and Vice President.

I intend at this stage to elucidate on certain legal points which will continue to lurk at the background during the consideration of the germane issue in this appeal.

These are –

(a) What amounts to a Declaratory Relief

(b) Evaluation of evidence by an Appellate court.

The most important aspect of the duty of the court in the evaluation of evidence is to decide where the scale preponderates by qualitative evidence. The court must ensure that it holds the string or scale of justice evenly balanced between the parties so that justice may not only be done but must manifestly be seen to have been done. There is however a distinct difference between the role of a trial court and that of an appellate court in the area of evaluation of evidence. It is the trial court which alone has the primary function of fully considering the totality of evidence placed before it, ascribes probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make the necessary findings of fact flowing therefrom, apply the relevant law to the findings and come to a logical conclusion. The evaluation of evidence remains the exclusive preserve of the trial court because of its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus it is the court best suited to assess their credibility. Where a trial court makes a finding on the credibility of a witness, or appellate court would not ordinarily interfere.

Where the nature of the case is such that the evaluation would not entail the assessment of credibility of witnesses and would be confined to drawing inferences and making findings from admitted and proved facts and from contents of documentary evidence, the appellate court is in as vantage a position as the trial court to evaluate or re-evaluate the evidence and make its own findings. This court as an appellate court to the lower Tribunal has a duty to re-appraise the evidence on record to see if the findings of the trial court were perverse.

Woluchem v. Gudi (1981) 5 SC. 291.

Mogaji v. Odofin (1978) 4 SC 91.

Duni v. Nwosu (1989) 4 NWLR (pt.113) pg.24.

Akintola v. Balogun (2000) 1 NWLR (pt.642) pg. 532

Ebba v. Ogodo (1984) 1 SCNLR 372.

Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (pt.7) pg.393.

Before I consider the issue of non-compliance, I must express my observation on gleaning through the records pages 68-69 based on the pleadings of the appellant that reliefs 1, 2 and 5, paragraph 40 are basically declaratory in nature. They are:

(i) That the election was invalid by reason of corrupt practices and substantial non-compliance with the provisions of the Electoral Act 2010 which substantially affected the result of the election.

(ii) That the 3rd and 4th respondents were not duly elected by majority of lawful votes cast at the election.

They relate to Section 134 (2) of the 1999 Constitution and 139 (1) of the Electoral Act 2010.

It is trite that in a claim for declaration, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the court that upon the pleadings and cogent and credible evidence adduced by him that he is entitled to the declaration of right in his favour.

Nwokidu v. Okanu (2010) 3 NWLR (pt.1181) pg.362.

Ekundayo v. Baruwa (1965) 2 All NLR pg.211.

Dantata v. Mohamrned (2000) 7 NWLR (pt.664) pg.176.

Section 139 (1) of the Electoral Act stipulates that –

“An election shall not be liable to be invalidated by reason of noncompliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”

The issue of non-compliance was raised before the lower-court. The court in its judgment concluded at page 2876 of the record that-

“Since the petitioner conceded that the petition was not based on the allegations of corrupt practices but on substantial non-compliance, for noncompliance to render the election invalid or contrary to the Electoral Act, it must be so great and substantial and the court or Tribunal must be satisfied that it affected or might have affected the majority of the votes or the result of the election. The Supreme Court re-stated the law on non-compliance with the provisions of the Electoral Act 2006 in the case Buhari v. INEC (2008) 19 NWLR (pt.1120) pg.246 at 435-436. The law as it stands requires the petitioner after establishing the substantial noncompliance occasioned by breach of Section 45 (1) and (2) of the Act, to go ahead and prove that the non-compliance affected the result of the election.

It is clear from the decided authorities that before a petition can succeed on the ground of non-compliance with the provisions of the Electoral Act; the petitioners must prove not only that there was non-compliance with the provisions of the Electoral Act but that the non-compliance substantially affected the result of the election.

In other words, the petitioner has two burdens to prove:-

(a) That non-compliance took place and

(b) That the non-compliance substantially affected the result of the election.”

That leads to another crucial or vital question – on whom then does the burden of proof lie In finding an answer to this question, I shall explore the relevant sections of the Evidence Act 2011 (as amended).

Section 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”

131 (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 case, the burden of first proving existence or non-compliance of a fact lies on a 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.”

Section 134 reads:

“The burden of proof shall be discharged on the balance of probabilities in any civil proceedings.”

From the foregoing, the burden of proof generally in the sense of establishing a case virtually lies on the plaintiff or the initiator of a suit. He who asserts must prove what he asserts i.e. qui affirmat non a qui negat incumbat probat. The party who asserts in his pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence. If he fails to do so, his case fails. A plaintiff would be expected to succeed on the strength of his own case and not on the weakness of the defence.

On the other hand, if he succeeds in adducing evidence to prove pleaded facts, he is said to have discharged the burden of proof that rests on him. The burden then shifts to his adversary to prove that the fact established by the evidence adduced would not, on the preponderance of evidence, result in the court giving judgment in favour of the party. The same burden is applicable to election cases. Until the plaintiff or petitioner has discharged the onus cast on him by law, the onus does not shift.

Buhari v. Obasanjo (2005) 2 NWLR (pt.910) pg.241.

Igwe v. A.C.B. Plc (1999) 6 NWLR (pt.605) pg.1

Ajadi v. Ajibola (2004) 10 NWLR (pt.898) pg.91

Haruna v. Modibbo (2004) 16 NWLR (pt.900) pg.487

The case of the appellant as petitioner before the lower court and even in his brief before this court demonstrated a clear misconception of the burden of proof required from a petitioner alleging non-compliance with the provisions of Section 139 of the Electoral Act. The evidence of the appellant both oral and documentary was geared towards the burden of proof resting squarely on the 1st respondent based on certain alleged complaints in the conduct of the election, non-production of documentary evidence and witnesses in the petition. Allegations of substantial non-compliance with electoral laws or regulations is not a new concept in our court in election petition. The Supreme Court over the years had made pronouncements to settle that the burden of proving that non-compliance with the Electoral Act which substantially affected the result of the election lies on the petitioner.

I shall restate the pronouncement of the Supreme Court in some of these cases.

In the case of Akinfosile v. Ijose (1960) Vols.4 and 5 pg.192 or 1960 WRNLR 60; an election petition brought before an Akure High Court on the grounds of irregularities and non-compliance with some provisions of the Election to the House of Representatives Regulations 1958. On appeal to the Federal Supreme Court, the court held –

“I do not find it necessary to say more about these cases than that in my view none of those cited by counsel for the petitioner supports the proposition contended for him namely, that once any non-compliance with the regulations has been shown by the petitioner, the onus shifts to the respondent to satisfy the court trying an election petition that the noncompliance did not affect the result of the election. I am firmly of the view as above indicated that a petitioner who alleges in his petition a particular non-compliance avers in his prayer that the non-compliance was substantial, must so satisfy the court. This the petitioner failed to do.”

In the case of Awolowo v. Shagari (1979), All NLR 120 at pg.161; (1979) 6-9 SC pg.5l; (1979) 12 NSCC pg.87 at pg. 23 the Supreme Court said that-

“If this proposition is closely examined it will be found to be equivalent to this that the non-observance of these rules or forms which is to render the election invalid must be so great as to amount to a conducting of the election in a manner contrary to the principle of an election by ballot and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the votes in or other words the result of the election.”

In the case of Buhari v. Obasanjo (2005) 13 NWLR (pt.941) pg.1, the Supreme Court said that –

“It is manifest that an election by virtue of Section 135 (1) of the Act shall not be invalidated by mere reason it was not conducted substantially in accordance with the provisions of the Act. It must be shown clearly by evidence that the non-substantiality has affected the result of the election. Election and its victory is like soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figures i.e. the votes that the compliance attracted or omitted. The elementary evidential burden of the person asserting must prove has not been derogated from by Section 135 (1). The petitioner must not only assert but must also prove to the court that the non-compliance has so affected the election result to justify nullification.”

In more recent times in the case of Abubakar v. Yar’ Adua (2008) 19 NWLR (pt.1120) pg.1, the Supreme Court said that –

“The operative words in Section 146 (1) are if it appears to the election tribunal or court that the election was conducted substantially in accordance with the principles of the Act. In view of the facts that the tribunal or court can only come to the conclusion in the light of the evidence before it, one of the parties must give that evidence to the contrary and the party is the one who will fail if that evidence is not given. That party in my humble view is the petitioner. He is the party who alleges that the election was not conducted substantially in accordance with the principles of the Electoral Act.”

Section 135 (1) Electoral Act 2002 and Section 146 (1) of the 2006 Electoral Act are now Section 139 (1) of the Electoral Act 2010 (as amended).

In the act of presenting its case, the appellant adopted the stance of passing the buck. It brought all allegations amounting to noncompliance and retreated, expecting the 1st respondent INEC to provide the necessary and relevant material evidence to establish its case.

By force of law, the Independent National Electoral Commission has the duty of conducting elections. Besides the constitutional provisions, it is guided by the Electoral Act 2010 (as amended) and the Election guidelines and Manual issued for its officials in accordance with the Act. These documents embody all steps to comply with in the conduct of a free, fair and hitch free election, a party seeking nullification of an election must succeed on the strength of his own case and not on the weakness of the respondent’s case. This is so in that failure of the adversary to call evidence will not relieve the party from satisfying the tribunal by cogent and reliable proof or evidence in support of the petition.

Rotimi v. Faforiji (1999) 6 NWLR (pt.606) pg.305.

Okoroji v. Ngwu (1992) 1 NWLR (pt.263) pg.113.

The appellant as petitioner at the trial court relied on both oral and documentary evidence to establish the averments in its pleadings. The appellant called 47 witnesses who gave diverse evidence about the conduct of the election like-

1. Those in charge of analysis of ECB series.
2. Those in charge of voters Register.
3. Reporters on supply of election materials.
4. Polling Unit Agents for States
5. Roving Agents
6. Supervisory Collating Agents

DOCUMENTARY EVIDENCE

7. At the pre-hearing proceedings, it was agreed that certain documents like Forms EC8A, EC8B, EC8C, Ballot Papers, Register of voters showing accreditation of voters, documents showing distribution of ballot papers and other election materials and documents were to be obtained by them from the State offices of the 1st, 2nd, 6th – 42nd respondents (INEC) subject to payment of fees specified for the certification of the documents.
8. Documents in which only certified true copies could be obtained appellant requested for the original.
9. On occasion when subpoenaed witness was available and documents to be tendered by them – appellant proceeded to close its case contending that such witness was a witness of court.
10. Front loaded documents of the 1st, 2nd, 6th – 42nd respondents were tendered by the appellant.

The quality of the evidence of the witnesses called by the appellant did not meet the required standard of proof to rebut the allegations levied against the respondents. In view of the gravity of the allegations, the onus was on the appellant to prove the allegations which it failed to discharge. As regards the witnesses called, PW1 one Buba Galadima and Prince Tony Momoh – who are both important Chieftains of CPC; the Chairman and National Secretary respectively had their witness statements muddled up and the application that both of them should swap their witness statements was refused by court. Both witnesses had their statements struck out (Vide pages 99, 101-109 of Vol. 1 and 2515, 2258 of Vol.6 of the Record). They were meant to be key witnesses for the petitioner. Of all the forty-seven witnesses called by the appellant, none of them tendered their voters cards to indicate that they wanted to vote but could not owing to absence of election materials. The roving agents and witnesses who claimed they analysed result streets and voters register and found discrepancies in a number of voters register did not tender such report during the hearing of the petition. There was evidence that the appellant had polling Agents all over the country but only six of them were called. The six agents who were called gave contradictory evidence.

Any evidence produced by the appellant to rebut the presumption of regularity enjoyed by INEC by virtue of Section 168 of the Evidence Act 2011 (as amended) can only be rebutted by cogent, credible and acceptable evidence.

A court of law can only pronounce judgment based on credible evidence presented and properly established before it. A court of law is not at liberty to go outside the evidence and search for extraneous evidence in favour of the parties.

Abubakar v. Yar’Adua (2008) 19 NWLR (pt.1120) pg.1.

The contention of the appellant in this petition is that by virtue of the constitutional role of the 1st respondent in the conduct of the election, once it had alleged irregularities such as non-accreditation of voters, under supply of voting materials etc the onus shifts to the respondent to rebut them.

Generally speaking, in an election petition, it is the petitioner who will fail if no evidence at all were given on either side since there is a presumption of regularity in the execution of an official act as shown in Section 168 (1) of the Evidence Act which provides that: –

‘Where any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”

There is a presumption that any election result declared by a returning officer is authentic and correct. The burden to rebut is on the person who denies its correctness. It is however a rebuttable presumption.

Jalingo v. Nyame (1992) 3 NWLR (pt.231) pg.538.

Nwobodo v. Onoh (1984) 1 SCNLR (pt.231) pg.538.

Omoboriowo v. Ajasin (1984) 1 SCNLR pg.108.

Abubakar v. Yar’Adua (2008) 19 NWLR (pt.1120) pg. 1

Hashidu v. Goje (2003) 15 NWLR (pt.843) at pg.352.

Documentary evidence produced by the 1st respondent was related to –

(a) Election Collation Results in Form ECBD for Adamawa, Abia, Akwa Ibom, Anambra, cross River, Ebonyi, Enugu, Imo, Jigawa, Kaduna, Nasarawa, Rivers, Sokoto and Taraba States where election was challenged by the appellant.

(b) Summary results of National election which took place in 36 States and the Federal Capital Territory.

(c) Declaration of Result of election in Forms EC8D and EC8A.

(d) Letters of contract to AERO VOTE LTD. G. I. Solution Ltd, Tulip Press Ltd. for the printing of ballot papers and distribution of election materials.

Certified true copies of these documents were brought to the Tribunal and tendered in evidence and by virtue of Section 168 of the Evidence Act (as amended) they all carry presumption of regularity.

In the case of Omoboriowo v. Ajasin (1984) 1 SCNLR pg.1 the Supreme Court confirmed this principle when it said –

“Now as I stated in Nwobodo v. Onoh (supra) there is in law a rebuttable presumption that the result of any election declared by the Returning Officer is correct and authentic by virtue of Section 115, 14-8 (c) and 149 (1) of the Evidence Act and the burden is on the person which denied the correctness and authentic of the return to rebut the presumption. Where such denial is based on a mere complaint that the petitioner scored a majority of lawful votes the rebuttal needs only to be proved within the balance of probability.”

The case of Ibrahim v. Shagari (1983) 2 SCNLR pg.196 stated categorically that “The onus lies on the appellants to establish first substantial non compliance. Secondly that it did or could have affected the result of the election. It is after they have established the foregoing that the onus would have shifted to the respondents to establish that the results was not affected.”

Where an allegation was made that an election was invalid by reason of non-compliance with the provisions of Section 139 (1) of the Electoral Act 2010 (as amended) the section vested an Election Tribunal or court entertaining an election petition with the power to decide from the evidence tendered before it in such case whether the alleged non-compliance was substantial enough to invalidate the election. The emphasis is not on whether those acts of non-compliance are of criminal or civil nature, but on whether the election was conducted substantially in accordance with the principles of the Electoral Act and that the non-compliance did not substantially affect the result of the election. The petitioner must not only assert but must satisfy the court that non-compliance affected the election result to justify nullification.

Buhari v. Obasanjo (2005)13 NWLR (pt.941) pg.1.

Awolowo v. Shagari (1929) 6-9 SC pg.51.

Akinfosile v. Ijose (1960) SCNLR pg.176.

Swen v. Dzungwe (1966) 1 SCNLR pg. 111.

Bassey v. Young (1963) 1 SCNLR pg.61 .

Sorunke v. Odebunmi (1960) SCNLR pg.414.

Dada v. Dosunrnu (2006) 18 NWLR (pt.2010) pg.134

Amosun v. INEC (2007) ALL FWLR (pt.391) pg. 1712.

In the case of Swen v. Dzungwe (1966) 1 SCNLR pg.111 this court held that –

“It follows clearly that if at the end of the case of the petitioner, a case of non-compliance is established which may not affect the result of the election, it is impossible for the tribunal to say whether or not the result were affected by the non-compliance as found could not and did not in fact affect the result of the election, then the petition is entitled to succeed on the simple ground that civil cases are proved by preponderance of accepted evidence.”

The duty lies on the court to determine whether or not an election was conducted substantially in accordance with the Constitution and the Electoral Act 2010. The court will look at circumstance of the case, including the state of pleadings, especially the credibility of the petitioners position and the nature and substance of the complaints of the petitioner, the attitude of the functionaries charged with the conduct of the election and whether the omissions complained of by the petitioner even if proved, affected the conduct of the election.

Okoroji v. Ngwu (1992) 9 NWLR (pt.263) pg.113.

The court discharged this duty and found that the lapses of the appellant in the process of hearing of the petition at the court below mentioned in this judgment are just a tip of the ice berg. The lower court identified them exhaustively in evaluating the evidence available in the petition before holding on pg.2877 of the record that

“From whatever angle this petition is looked at, it is clear that the burden of proof of the allegations contained in the petition be they criminal or for substantial non-compliance rested with the petitioner. The petitioner did not discharge this burden to warrant rebuttal evidence to be adduced by the 1st set of respondents.”

The lower court came to this conclusion going by the evidence before it both oral and documentary that the election of the office of the president and vice-president had not been successfully challenged; the petition failed and was dismissed. The foregoing conclusion of the lower court was in the circumstance right, proper and unassailable – this court has no justifiable reason to interfere with it. The appeal lacks merit and it is accordingly dismissed. The judgment of the lower court is affirmed. Consequently, the 3rd and 4th respondents won the election conducted by the 1st respondent on the said 16tn April, 2011 and were returned by the 1st respondent as the duly elected President and Vice-President respectively of the Federal Republic of Nigeria. No order as to costs.

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SC.426/2011