Standard of Proof Where an Allegation of Crime Is Made in an Election Petition

CASE TITLE: AUGUSTINE & ANOR v. INEC & ORS (2024) LPELR-61876(SC)
JUDGMENT DATE: 19TH JANUARY, 2024
PRACTICE AREA: ELECTION PETITION
LEAD JUDGMENT: JOHN INYANG OKORO, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:
This appeal borders on Election Petition.

FACTS:

This is an appeal against the judgment of the Court of Appeal sitting in Asaba Judicial Division in Appeal No: CA/AS/EP/GOV/DL/43/2023 delivered on November 24, 2023.

Following the conduct of Governorship Election for Delta State on the 18th and 19th of March 2023, the 2nd Respondent who was sponsored for that election by the 3rd Respondent was declared the winner and returned elected, having scored 360,234 votes, the majority of lawful votes cast to defeat 16 other contestants. The 1st Appellant who was sponsored by the 2nd Appellant came 2nd in the contest with 240,229 votes. Dissatisfied with the declaration of the 2nd Respondent as the winner of the election.

The Appellants filed a petition predicated on two (2) grounds to challenge the outcome of the election, as follows:

(I) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2022.
(II) That the 2nd Respondent was not duly elected by the majority of lawful votes cast at the election.

As a consequence, the Appellant prayed to the Tribunal for the following:

The election and the return of the 2nd Respondent, Oborevwori Sheriff Francis Orohwedor of the Peoples Democratic Party (PDP), as the 3rd Respondent as the winner of the election are invalid by reason of non-compliance or corrupt practices with the provisions of the Electoral Act, 2022.
That the 2nd Respondent was not duly elected by a majority of lawful votes cast at the governorship election held in Delta on March 18, 2023.
AN ORDER VOIDING OR ANNULLING the declaration and return of the 2nd Respondent, Oborevwori Sheriff Francis Orohwedor of the Peoples Democratic Party (PDP), the 3rd Respondent, as the winner of the gubernatorial election conducted in Delta State on the 18th of March, 2023.
AN ORDER VOIDING OR ANNULLING the certificate of return issued by the 1st Respondent to the 2nd Respondent, Oborevwori Sheriff Francis Orohwedor of the Peoples Democratic Party, the 3rd Respondent as winner of the election and governor-elect of Delta State.

At the close of trial, the Tribunal delivered its judgment dismissing the petition for failure of the petitioners to prove their case. An appeal to the Court of Appeal predicated on 27 grounds of appeal was also unanimously dismissed.

Still dissatisfied, the Appellant appealed to the Supreme Court.

ISSUE(S) FOR DETERMINATION:
The appeal was determined based on the issues raised by the Appellant thus:

“Whether, having regard to the pleading, the evidence, the admissions made by the 1st Respondent and the applicable laws, the decision of the learned Justices of the Court of Appeal, which affirmed the Tribunal’s decision that the Appellants did not prove the facts in support of their ground of non-compliance with the provisions of the Electoral Act 2022, was perverse and occasioned a miscarriage of justice.”
“Whether, having regard to the pleadings, the evidence, the admissions made by the 1st Respondent and the applicable laws, the decision of the learned justices of the Court of Appeal, which affirmed the Tribunal’s decision that the Appellants did not prove the facts in support of their ground of corrupt practices, was perverse and occasioned a miscarriage of justice.”
“Whether, having regards to the pleadings, the evidence, the admissions made by the 1st Respondent and the applicable laws, the decision of the learned justices of the Court of Appeal, which affirmed the Tribunal’s decision that the Appellants did not prove their ground of the petition that the 2nd Respondent did not win the election with the majority of lawful votes cast and the consequential dismissal of the Appellants’ appeal with costs, was perverse and occasioned a miscarriage of justice.”
“Whether, having regard to the evidence adduced at the trial Court, the conviction and sentence passed on the Appellant are liable to be quashed by this Honourable Court?”

DECISION/HELD:
In the final analysis, the appeal was dismissed.

RATIOS:
• ELECTION PETITION – ALLEGATION OF NON-COMPLIANCE WITH THE ELECTORAL ACT – Whether a petitioner who alleges non-compliance with the provisions of the Electoral Act must show how it substantially affected the result of the election
• EVIDENCE – PRESUMPTION OF REGULARITY – Presumption of regularity of official/Judicial acts and instances where same will apply
• ELECTION PETITION – OVER-VOTING – Documents needed to prove overvoting; effect of failure to tender same
• ELECTION PETITION – STANDARD OF PROOF – Standard of proof where an allegation of crime is made in an election petition
• PRACTICE AND PROCEDURE – ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE – Instance(s) in which an appeal/suit/relief(s) will be rendered academic; effect of same
• INTERPRETATION OF STATUTE – SECTION 73(2) OF THE ELECTORAL ACT, 2022 – Interpretation of Section 73(2) of the Electoral Act, 2022, as regards the effect of election conducted without filling out requisite forms
• ELECTION PETITION – OVER-VOTING – Instance(s) in which over-voting will be said not to have been proved
• ELECTION PETITION – ALLEGATION OF NON-COMPLIANCE WITH THE ELECTORAL ACT – Instance(s) where an allegation of non-compliance will be held not to have been proven
• ELECTORAL MATTERS – INDEPENDENT NATIONAL ELECTORAL COMMISSION – Duty of INEC to ensure total compliance with the provisions of Section 73(2) of the Electoral Act, 2022