Unlawful Exclusion of Votes: Documents Required to Establish Same
The 1st Appellant and 1st Respondent contested the gubernatorial election conducted in Imo State on 8th March, 2019 under the 2nd Appellant’s and 2nd Respondent’s parties respectively, along with 68 other candidates. At the end of the exercise, the 1st Respondent was returned as the winner of the election. The 1st Appellant thereby, filed a Petition, wherein he contested the result of the election and return of the 1st Respondent, on the grounds that (a) The 1st Respondent was not validly elected by majority of lawful votes cast; and (b) The declaration and return of the 1st Respondent is invalid by reason of non-compliance with the Electoral Act. He sought several reliefs, including the nullification of the return of the 1st Respondent, and declaration that he is the winner of the said election.
At the Election Petition Tribunal, the 1st Appellant contended that, election held in 27 Local Government Areas, 305 Electoral Wards and 3,523 Polling Units. He posited that, the 3rd Respondent cancelled election in 252 Polling Units, collated results from 2,883 Polling Units and excluded results from 388 Polling Units, and that he scored an overwhelming majority in the 388 Polling Units that were excluded from the Ward collation result (Forms EC8B). He contended further that, the total number of votes due to him from the unlawfully excluded 388 Polling Units is 213,695 while the 1st Respondent only had 1,903 votes therefrom. The Respondents joined issues with the Appellants, in their responses to the Petition.
Parties called witnesses and tendered documents, in support of their respective positions. After concluding trial in the Petition, the Tribunal dismissed the Petition as lacking in merit. Unhappy with the decision, the Appellants appealed to the Court of Appeal, whereat, by a majority decision of 4:1, the appellate court dismissed the appeal. The Appellants further appealed to the Supreme Court.
Issues for Determination
The Supreme Court determined the appeal on the following issues:
(1) Considering the facts of this case and the case law on polling unit results given to Police Officers deployed to polling units, whether the court below was not in grave error when it held that PW54 was not the proper person to tender Exhibits PPP1- PPP366 (Grounds 2, 3, 4 and 5).
(2) Given the state of pleadings and the evidence before the lower court, whether the decision of the court below that the Appellants did not “prove their allegation that their scores were excluded from collation” was not wrong as a result of a misconception of the Appellant’s case? (Grounds 6, 7, 8, 9, 11, 13, 15, 16 and 22).
Arguments
On the first issue, the Appellants contended that, the crux of their case as pleaded in the Petition, was that scores due to them in 388 Polling Units were not collated into Forms EC8B, thereby denying them a total of 213,695 votes. The Respondents on their parts, denied the exclusion of such results, and the 3rd Respondent specifically pleaded in paragraph 14 of its Reply to the Petition, that the authentic results of the election would be tendered at the trial. At the trial, the Respondents extracted evidence from some of Appellant’s witnesses under cross-examination, confirming the presence of Police Officers in their units, thereby illustrating the relevance of the evidence of PW54 (the subpoenaed Deputy Commissioner of Police) who tendered Exhibits PPP1-PPP366. At the Tribunal, the evidence of PW54 was expunged, on the basis that he lacked the competence and authority to testify and tender the said documents. The Court of Appeal however, upheld the appeal of the Appellant against the rejection of the documents, and held that PW54 was properly before the court as a subpoenaed witness, but refused to accord the exhibits, any probative value, relying on extraneous grounds such as certification of the documents and proper custody. Counsel argued that the Exhibits are duplicate originals, and therefore, do not require certification, relying on Section 86(2) of the Evidence Act, 2011 and the case of AJA v
ODIN (2011) 5 NWLR (PT. 1241) 509 at 503 C-D. He also submitted that, the evidence of PW54 shows that the documents were in the custody of the Police authorities and released to PW54 on the authority of the Commissioner of Police, in obedience to the subpoena issued by the Tribunal. On admissibility and evidential value of election results given to Policemen, counsel submitted that, the procedure is provided for under Section 63(3) of the Electoral Act, 2010 (as amended) and in Paragraph 22(c) (iv) of INEC Guidelines for 2019 General Elections, and validated in several judicial decisions. He noted also that, the Respondents failed to adduce evidence in support of their allegation that the documents were forged. Counsel urged the court to exercise its powers under Section 22 of the Supreme Court Act, to consider, evaluate and give probative value to the documents.
On the second issue, Appellants relied on Sections 133(1) and Section 136(1) of the Evidence Act, 2011 in support of their submission that they discharged the burden of proving exclusion of results, by tendering relevant documents and calling several witnesses and that the burden shifted to the Respondents to disprove the facts alleged by the Appellants, but they failed to tender any result for the election in the 388 Polling Units to contradict the duplicates tendered by the Appellants.
Debunking the submissions above, counsel for the Respondents submitted that, in line with the Appellants’ pleadings, they were obliged to prove (i) that elections were conducted in each of the
388 polling units; (ii) that the elections were properly conducted in those units; (iii) that they had agents in each of the polling units; and (iv) that the results of the election in the 388 Polling Units were issued by the Presiding Officers to the Appellants’ agents, who were present when the election took place in the units. He contended that it is the Appellants’ agents, as the makers of the documents, who can speak to the Forms EC8A and EC8B relied upon by the Appellants. Relying on BUHARI v OBASANJO
(2005) 13 NWLR (PT. 941) 1 at 315-316, counsel submitted that, the duplicate result sheets tendered were of no evidential value, having not been tendered by their makers and that the Police Officers who were at the specific Polling Units ought to have been called to testify. The Appellants called 28 Polling Unit Agents, leaving 360 unattended to. More so, their evidence were disbelieved by the Tribunal, as it was evident that the results were signed by the Appellants’ agents alone. Further, the tabulation of scores relied upon in the Appellants’ pleadings, showed an inconsistency between the numbers of votes scored vis-à-vis the number of registered voters.
Counsel reasoned that the onus was on the Appellants to call the INEC officials and presiding officers, who purportedly made the 388 pink copies of the Polling Unit results to testify and that based on the presumption that the results declared by INEC is correct, the onus of proving that the election results were incorrect, is on the Appellants. Counsel posited that the Appellants who seek declaratory reliefs must succeed on the strength of their case and not on the weakness of the defence and that the documents relied on by the Appellants were dumped on the Tribunal without linking them to the specific aspects of the Appellant’s case.
Court’s Judgement and Rationale
Deciding the issues, the Supreme Court observed that it is necessary to consider the pleading of parties and issues joined thereon, as those are the issues which bind the court and parties. From the state of pleadings and the findings of the courts below, the main issue joined on the pleadings was the allegation that votes due to the Appellants from 388 Polling Units were excluded from the votes accredited to them at the election, and that if the votes were added to their score, they would have emerged as winners of the election. The question then, is how an allegation of exclusion of votes can be proved.
In BUHARI v OBASANJO (supra), the court held that, where a Petitioner contests the legality of votes cast in an election and the subsequent result, he must tender, not only the forms and other documents used at the election, he must also call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that, the illegality substantially
affected the result of the election. The contention in this case however, is that at the Ward Collation stage, votes scored by the Appellants were unlawfully excluded. The documents required in proving this allegation would be Form EC8A series, which is the primary evidence of an election (statement of results from Polling Units) and From EC8B, the ward collated results. The Appellants called 54 witnesses and tendered Forms EC8A, EC8B, EC8C, EC8D and EC8E series. The 1st and 2nd Respondents also called witnesses and tendered Certified True Copies of the Form EC8 series, while the 3rd Respondent did not call witnesses or tender documents.
The courts below decided that to prove unlawful exclusion of result in the 388 Poling Units, it was required of the Appellants to call the Polling Unit Agents to testify about conduct of elections in the respective units. The Supreme Court observed that from the pleadings, the Appellants did not challenge the holding of the elections in the Poling Units but that their votes were excluded at the collation stage. The authorities requiring the evidence of Polling Unit Agents is inapplicable here, especially as the 3rd Respondent denied excluding the votes scored by the Appellants in the said units.
Further, the Respondents pleaded that the documents relied on by the Appellants were false, and that they would tender the genuine results. This is a criminal allegation and they are required to plead the specific elements of fraud, as well as lead evidence showing the genuine results. It is the law that, mere assertion in pleadings does not constitute evidence. Though the Respondents contested the genuineness of Exhibits PPP1 to PPP366, they failed to lead evidence in proof of this assertion beyond reasonable doubt, and failed to produce the “genuine” results as pleaded.
On the contention that the Exhibits relied on by the Appellants were not certified, the court relied on Section 86(2) of the Evidence Act, 2011 to hold that, the said Exhibits being duplicates of the original, required no certification – GAMBO IDI v THE STATE (2017) 6 SC (PT. IV) 96.
Their Lordships held further that, the lower courts misplaced the burden of proof, as a result of which the bulk of the evidence was disregarded by them. The evidence of the Appellant’s witnesses were rejected, on the ground that they were not able to prove any anomaly in the units, which was not the basis of the Appellants’ Petition. The Supreme Court does not lightly set aside concurrent findings of the courts below, it will however, disturb such findings where it is satisfied that there is an apparent error on the face of the record of proceedings showing that such findings are perverse – AYENI v ADESHINA (2007) ALL FWLR (PT. 370) 1451 at 1557-1458.
Given the above, the court held that, consideration of the Appellant’s case on a wrong premise occasioned a miscarriage of justice. Thus, the issues were resolved in favour of the Appellants. The court therefore, set aside the decisions of the courts below and ordered that votes due to the Appellants from the 388 Polling Units were unlawfully excluded, be added to the results declared by the 3rd Respondent. The court held further that, the 1st Respondent was not duly elected by majority of lawful voted cast and that the 1st Appellant is the winner of the said election. A Certificate of Return was ordered to be issued to the 1st Appellant and he should be sworn in as the Governor of Imo State.
In view of the decision above, the court considered the Crossappeal spent and struck out same.
Appeal Allowed; Cross-Appeal Struck out.
Representation
D.D. Dodo, SAN with others for the Appellant.
Dr. Onyechi Ikpeazu, SAN with others for the 1st Respondent.
K.C.O. Njemanze, SAN with others for the 2nd Respondent.
Aham Eke Ejelam, SAN with others for the 3rd Respondent.
Reported by Optimum Publishers Limited
(Publishers of the Nigerian Monthly Law Reports (NMLR))
“...... WHERE A PETITIONER CONTESTS THE LEGALITY OF VOTES CAST IN AN ELECTION AND THE SUBSEQUENT RESULT, HE MUST TENDER, NOT ONLY THE FORMS AND OTHER DOCUMENTS USED AT THE ELECTION, HE MUST ALSO CALL WITNESSES TO TESTIFY TO THE ILLEGALITY OR UNLAWFULNESS OF THE VOTES CAST AND PROVE THAT, THE ILLEGALITY SUBSTANTIALLY AFFECTED THE RESULT OF THE ELECTION”