When will the Evidence of a Witness Be Held to be Hearsay and Inadmissible in an Election Petition Proceeding?

CASE TITLE: NNAEMEKA & ANOR v. INEC & ORS (2024) LPELR-63034(SC)
JUDGMENT DATE: 23RD AUGUST, 2024
PRACTICE AREA: ELECTION PETITION
LEAD JUDGMENT: MOHAMMED BABA IDRIS, 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 delivered on the 16th day of July 2024, wherein the Court below affirmed the judgment of the Governorship Election Tribunal Imo State sitting at Abuja delivered on the 24th day of May 2024, wherein the trial tribunal dismissed the petition and affirmed the return and declaration of the 3rd Respondent as the winner of the Imo State Governorship election held on the 11th day of November 2023 and conducted by the 1st Respondent.

It was the case of the Appellants at the Tribunal that the 3rd Respondent was not qualified to contest the election as he presented a forged secondary school certificate he allegedly attended to the 1st Respondent when he submitted the 1st Respondent’s Form EC9, which he submitted in his effort to contest for the governorship seat in the election that took place on the 11th day of November 2023. The Appellants contended that the alleged forged certificate does not belong to the 3rd Respondent but to one IGBONAJU ISRAEL EZEOCHA, candidate No. 11649117. Also, in the 3rd Respondent’s effort to contest as a Senator of the Federal Republic of Nigeria in 2011, for the Imo West Senatorial District, the 3rd Respondent presented a forged school certificate from a secondary school he allegedly attended.

The second ground of the Appellants’ petition at the tribunal was that the election of the 3rd Respondent was invalid because of non-compliance with the provisions of the Electoral Act, 2022, Regulations and Guidelines for the Conduct of Elections, 2022 and the INEC Manual for Election Officials, 2023, which substantially affected the results declared. The Appellants alleged that the election was marred by a series of irregularities like over-voting, non-stamping of result sheets, non-signing of polling unit results, the number of votes cast exceeding the number of permanent voters’ cards collected in polling units, and the bypass or non-usage of BVAS, amongst others.

After the trial, the Tribunal dismissed the petition and affirmed the election and return of the 3rd Respondent as the duly elected Governor of Imo State on the platform of the 2nd Respondent.

Dissatisfied with the judgment of the trial Tribunal, the Appellants appealed to the Court of Appeal which relied on the issues formulated by the Appellants in their Brief of Argument to dismiss the appeal and affirmed the judgment of the trial Tribunal.

Still dissatisfied with the decision of the Court of Appeal the Appellants appealed to the Supreme Court.

ISSUES FOR DETERMINATION:

The Court considered:

1. Whether, having regard to the combined provisions of Paragraph 4(5)(c) of the First Schedule to the Electoral Act, 2022, Section 146 of the Electoral Act, 2022, Sections 68 (1) & (2) and 83 (5) of the Evidence Act 2011 (as amended), viz-a-viz the peculiar facts and circumstances of this case, the learned Justices of the Court of Appeal were right when they upheld the decision of the trial Tribunal expunging Exhibits P90 and P90A and thereafter failing to evaluate the said exhibits.

2. Whether, having regard to the facts and circumstances of this case, the learned Justices of the Court of Appeal were right when their Lordships omitted to invoke the doctrine of withholding evidence against the 1st Respondent but proceeded to find and hold that failure to tender BVAS is fatal to the case of the Appellants.

3. Whether, having regard to the facts and circumstances of this case as well as the evidence adduced in this case, the learned Justices of the Court of Appeal were right when their Lordship failed to apply the clear provisions of Section 137 of the Electoral Act, 2022 but affirmed the holding of the trial tribunal that the Appellants failed to prove Ground B of their petition, which bothers on noncompliance with the Electoral Act, 2022.

4. Whether, having regard to the peculiar facts and circumstances of this case as well as the evidence adduced before the trial tribunal, the learned Justices of the Court of Appeal were right when their Lordships held that the Appellants did not prove substantial non-compliance with the Electoral Act and that the irregularities complained of did not substantially affect the outcome of the election to entitle the Appellants to the reliefs sought in their petition.

5. Whether, having regard to the peculiar facts and circumstances of this case, vis a vis the combined provisions of Section 182(1)(j) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 134 of the Electoral Act, 2022, the learned Justices of the Court of Appeal were right when, in affirming the decision of the trial tribunal, it held that the complaint against the submission of a forged certificate by the 3rd Respondent to INEC in his Form EC9 is a pre-election matter which the trial tribunal cannot entertain.

6. Whether, having regard to the facts and circumstances of this case, the learned Justices of the Court of Appeal were right when their lordships upheld the judgment of the trial tribunal that the 1st Respondent had the locus standi to challenge the competence of Ground A of the Appellants’ Petition, which challenged the qualification of the 3rd Respondent to contest the Governorship election of Imo.

DECISION/HELD:

In conclusion, the appeal was dismissed.

RATIOS:

• ACTION- MISNOMER: When will a misnomer vitiate a proceeding
• ACTION- CLAIM(S)/RELIEF(S): Meaning and purpose of a consequential relief
• ELECTION PETITION- ELECTION PETITION PROCEEDINGS: Instance(s) where the evidence of witness(es) will be held to be hearsay and inadmissible in an election petition proceeding
• ELECTION PETITION- ALLEGATION OF NON-COMPLIANCE WITH THE ELECTORAL ACT: How to establish proof of non-compliance with the Electoral Act
• ELECTION PETITION- ALLEGATION OF NON-COMPLIANCE WITH THE ELECTORAL ACT: When it will/will not be necessary for a party who alleges non-compliance to call oral evidence pursuant to Section 137 of the Electoral Act
• ELECTION PETITION- OVER-VOTING: How to prove over-voting
• ELECTION PETITION- ACCREDITATION OF VOTERS: The importance of accreditation in the conduct of an election
• ELECTION PETITION- ACCREDITATION OF VOTERS: Importance of BVAS in proof of non-accreditation of voters/non-use of BVAS in the conduct of an election
• ELECTORAL MATTERS- PRE-ELECTION MATTERS: Whether the allegation that a candidate gave false information is a pre-election issue triable by the High Court
• ELECTORAL MATTERS- INDEPENDENT NATIONAL ELECTORAL COMMISSION: Need for the Independent National Electoral Commission to remain neutral in an election proceeding
• EVIDENCE- EXPERT OPINION/EVIDENCE: Position of the law with regard to expert opinion/evidence
• EVIDENCE- WITHHOLDING EVIDENCE: Principles of law as regards the presumption of withholding of evidence
• EVIDENCE- UNCHALLENGED/UNCONTROVERTED EVIDENCE: Effect of an unchallenged/uncontroverted evidence
• EVIDENCE- AFFIDAVIT EVIDENCE: Position of the law on document(s)/exhibited copy attached to affidavit
• JUDGMENT AND ORDER- SETTING ASIDE JUDGMENT/ORDER: Which Court can set aside the decision of the Court of Appeal
• JUSTICE- TECHNICAL JUSTICE: Attitude of Court to technical justice
• PRACTICE AND PROCEDURE- ISSUE OF JURISDICTION: When can the issue of jurisdiction be raised and who can raise same

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