Demystifying Legal Loopholes: Can Section 137 of the Electoral Act 2022 Offer a Petitioner Relief from the Burden of Proof?

CASE TITLE: CHIJIOKE & ANOR v. INEC & ORS (2023) LPELR-61484(CA)

JUDGMENT DATE: 2ND NOVEMBER, 2023

JUSTICES: ALI ABUBAKAR BABANDI GUMEL, JCA
PETER OYINKENIMIEMI AFFEN, JCA
ASMA’U MUSA MAINOMA, JCA

DIVISION: LAGOS

PRACTICE AREA: ELECTION PETITION

FACTS:

This appeal emanated from the judgment of the National and State Houses of Assembly Election Tribunal for Imo State, held at Mararaba in Nasarawa State.

The subject matter was the election for the seat of member representing Isiala Mbano/Okigwe/Onuimo Federal Constituency in the House of Representatives conducted by the 1st Respondent [INEC] on February 25, 2023. The 1st Appellant and the 2nd Respondent contested the election as candidates of the 2nd Appellant and the 3rd Respondent, respectively.

The 1st Respondent declared and returned the 2nd Respondent as duly elected, whereupon the Appellants challenged that outcome via a Petition issued out of the Registry of the Tribunal on March 17, 2023, alleging that the 2nd Respondent was not duly elected by the majority of lawful votes cast at the election and that the election was invalid due to corrupt practices or non-compliance with the provisions of the Electoral Act, 2022 – which are the statutory grounds provided in Section 134(1)(b) and (c) of the Electoral Act 2022 for questioning an election.

All three Respondents joined issues with the Appellants by filing separate replies to the Petition. The 2nd and 3rd Respondents equally raised separate preliminary objections filed on May 21, 2023, May 9, 2023, and May 19, 2023, respectively, challenging the competence of the petition as well as the qualification of the 1st Appellant to contest the election. These objections were consolidated for hearing by the Tribunal, and ruling thereon was delivered along with the Judgment on the substantive petition on September 4, 2023, wherein the objections were sustained in part while the substantive petition was dismissed for being bereft of merit.

Dissatisfied, the Appellants appealed.

ISSUES FOR DETERMINATION:

The Court considered:

(i) Whether the finding by the lower Tribunal that the Appellants’ exhibits were documentary hearsay under Section 37 of the Evidence Act, 2011 and that Section 137 of the Electoral Act, 2022, Paragraph 46(4) of the First Schedule of the Electoral Act, 2022, could not be used as a draconian monster to repeal and abrogate the legendary provisions of the Evidence Act dealing with issues of oral or documentary evidence is not perverse and occasioned a miscarriage of justice.

(ii) Whether from the manifest disclosures on the face of the exhibits, particularly Exhibits A, B, and Z3, and the evidence of PW13 & PW23, the lower Tribunal’s finding that appellants did not prove the allegation of non-compliance that substantially affected the result of the election did not affect Appellants’ right to a fair hearing when the lower tribunal refused or neglected to evaluate the exhibits despite the probative value ascribed to them as required by law, particularly when the Respondents tendered no results/reports/voters register to contradict the Appellants’ evidence, entitling them to judgment in the interest of justice.

COUNSEL SUBMISSIONS:

In the arguments presented on behalf of the Appellants, it was contended that the Tribunal failed to recognize the unique nature of an election petition, resulting in a misapplication of the law. Specifically, it was argued that Section 137 of the Electoral Act 2022 and Paragraph 46(4) of its Schedule should not be disregarded in favor of the provisions of the Evidence Act. The Appellants relied on the cases of EHUWA v. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) and NWA-ANYAJIKE v. INEC (2023), among others, to support their position.

They emphasized that while both Acts are legislation by the National Assembly, the Electoral Act 2022 contains specific provisions applicable only to election petitions, thus taking precedence over the general provisions of the Evidence Act. They cited the case of BOARD OF CUSTOMS AND EXCISE v. BARAU (1982) to support their argument.

The Appellants asserted that the Tribunal erred in its interpretation of the innovative provisions of the Electoral Act 2022, particularly regarding the admissibility of certified copies of electoral documents as evidence. They argued that the Tribunal’s decision resulted in a miscarriage of justice, referencing OSUJI v. EKEOCHA (2009) on the concept of a perverse decision.

In response, the Respondents maintained that Sections 137 of the Electoral Act 2022 and Paragraph 46(4) of its Schedule do not negate the requirements of the Evidence Act 2011. They cited the decisions in ADELEKE v. OYETOLA [2023] and OYETOLA v. INEC [2023] to support their argument that the duty to present polling unit agents as witnesses remains.

Furthermore, the Respondents argued that the dumping of documents without proper authentication is impermissible, citing cases such as AWUSE v. ODILI [2005] and MAKU v. AL-MAKURA [2016]. They emphasized the importance of calling document makers to testify and be cross-examined, as established in SIJUADE v. OYEWOLE [2012] and ABUBAKAR v. INEC [2020].

DECISION/HELD:

In the final analysis, the appeal was dismissed.

RATIO:

ELECTION PETITION – ELECTION PETITION PROCEEDINGS: Whether Section 137 of the Electoral Act 2022 and Paragraph 46(4) of the First Schedule to the Electoral Act can relieve a Petitioner of the burden of proving his petition to the satisfaction of the Tribunal; position of law on the provision of Section 137 of the Electoral Act

“It appears in rather bold relief that the Appellants staked the fortunes of this appeal on the provisions of Section 137 of the Electoral Act 2022 which provides that: “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified copies manifestly disclose the non-compliance alleged”; as well as Para. 46(4) of the Schedule thereto to the effect that: “Documentary evidence shall be put in and may be read or taken as read by consent, such documentary evidence shall be deemed demonstrated in open Court and the parties in the petition shall be entitled to address and urge argument on the content of the document, and the Tribunal or Court shall scrutinize or investigate the content of the documents as part of the process of ascribing probative value to the documents or otherwise”. It does not seem to me that these statutory provisions are a magic wand that would herald the success of an election petition that has not been fed with relevant and credible information that is sufficient to establish complaints of non-compliance.

The case of OYETOLA v. INEC supra donates the proposition that S. 137 of the Electoral Act 2022 does not dispense with the petitioner’s duty to field polling unit agents as witnesses and to prove his case with credible evidence. In this regard, the recent decision of this Court (per Sirajo, JCA) in TANKO & ANOR v INEC & ORS (Appeal No. CA/J/EP/BA/SEN/20/2023, pp. 40–42, delivered on October 27, 2022, unreported) on the import and implication of Section 137 of the Electoral Act 2022 in the scheme of proof of allegations of non-compliance in an election petition is quite illuminating and bears re-echoing:

“The Petitioners/Appellants have made very heavy use of the provisions of Section 137 of the Electoral Act. Let me state unequivocally that despite the sui generis nature of an election petition, Section 137 of the Electoral Act does not and cannot relieve a Petitioner of the burden of proving his petition to the satisfaction of the Tribunal as required by law. That section does not also relieve a Petitioner of the duty of tying each piece or bundle of documentary evidence to specific aspect

of his petition as made out in the pleading. All that the section connotes is that instead of calling a host of witnesses to speak to each document tendered, as was the case until now, a Petitioner can call a single witness or a few witnesses to speak to all the documents tendered, if that is possible. But this can only be achieved if the single witness or a few witnesses, in their front-loaded written depositions, made reference to the document or documents and related them to the specific non-compliance alleged in the petition. Where that was not already done at the time of filing the petition, a documentary exhibit tendered from the Bar without specific evidence leading to proof of its purport is not worth the paper on which it was written. It still remains the law that documents do not speak for themselves, and I hold the view that Section 137 of the Electoral Act has not abrogated the provisions of the Evidence Act to that effect. Even where the allegation of the Petitioner relates to non-compliance, the Petitioner must, through his evidence, expound on the nature of the non-compliance and its effect on the declared result of the election.

A Petitioner cannot, under the guise of Section 137 of the Electoral Act, dump documents on the Tribunal without more and expect the Tribunal to scrutinize them in the recess of its Chambers in order to decipher the non-compliance complained of. That is not the function of the Court. It will amount to descending into the arena of litigation for the Tribunal to condescend to that level with the attendant miscarriage of justice. I am not unmindful of the qualification for the application of Section 137 of the Electoral Act, that the non-compliance must be manifestly disclosed on the face of the document. That notwithstanding, the Petitioner must, first of all, provide evidence of the alleged manifest non-compliance with the Electoral Act through its witness(es) before the Tribunal will look at the documents to see if the non-compliance is manifest thereon. But where no evidence is presented, it will not be the duty of the Tribunal to scrutinize the documents for the Petitioner.

Section 137 of the Electoral Act is not intended to transfer the agelong constitutional duty of a Claimant or Petitioner to prove his assertion with credible evidence to the Court, as that will go against the letters and spirit of our Constitution and the rule of natural justice. I need not say more, save to underscore the point in passing that the Electoral Act is unquestionably subservient to the Constitution of the Federal Republic of Nigeria 1999, which canonizes “the inveterate canons of natural justice” in Section 36(1) thereof by guaranteeing the right to a fair hearing within a reasonable time by a Court or Tribunal established and constituted in such manner as to secure its independence and impartiality. Uncritical application of para. 46(4) of the Schedule to the Electoral Act 2022 could potentially violate the constitutional right to a fair hearing of litigating parties as well as undermine and compromise the enviable status of the Court or Tribunal as an impartial arbiter in our adversarial legal system. As stated in UCHA v. ELECHI supra at 360 (per Rhodes-Vivour, JSC), the proper role of a Judge qua judex is to descend from his heavenly abode, no lower than the treetops, resolve earthly disputes, and return to the Supreme Lord.

The judicial function entails examining the case as presented by the parties in accordance with the standards and procedures well laid down. If a Judge were to abandon that sacred duty and embark upon an inquest for irregularities (by scrutinising or investigating electoral documents merely deemed (but not actually) demonstrated before him in the avant-garde manner Para. 46(4) of the Schedule to the Electoral Act seems to suggest at face value), he would most likely be submerged in the dust of the conflict, if not completely overwhelmed by it, and render a perverse judgment in the process. It must not be!” Per AFFEN, J.C.A.

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