Whether The Provision of Section 137 Of the Electoral Act, 2022 Obviates the Need to Call Eye Witness in Proof of Electoral Non-Compliance

CASE TITLE: TANKO & ANOR v. INEC & ORS (2023) LPELR-61184(CA)

JUDGMENT DATE: 27TH OCTOBER, 2023

PRACTICE AREA: ELECTION PETITION

LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Election Petition.

FACTS:

This appeal emanated from the decision of the National and State Houses of Assembly Election Petition Tribunal in Bauchi State.

Following the National Assembly election on February 25, 2023, the Independent National Electoral Commission (INEC) declared Dr. Kaila Dahuwa Samaila of the Peoples Democratic Party (PDP) as the winner for the Bauchi North Senatorial District. Dissatisfied, Ibrahim Sirajo Tanko, who contested on the platform of the All Progressives Congress (APC), along with the APC, filed a petition challenging the declaration before the National and State Houses of Assembly Election Petition Tribunal in Bauchi State.

The petition sought several reliefs, including a determination that the 2nd Respondent (Dr. Kaila Dahuwa Samaila) was not duly elected, a declaration that the 1st Petitioner (Ibrahim Sirajo Tanko) was duly elected, and an order for the 1st Respondent (INEC) to issue a Certificate of Return to the 1st Petitioner. The grounds for the petition included the claim that the 2nd Respondent was not duly elected by a majority of lawful votes and that the election was invalid due to substantial non-compliance with the Electoral Act, 2022.

The trial Tribunal, in its judgment delivered on September 4, 2023, dismissed the Appellants’ petition. Dissatisfied with this decision, the Appellants appealed.

ISSUES FOR DETERMINATION:

The Court determined the appeal on a sole issue, viz:

“Whether, in view of the evidence led, both oral and documentary, the decision of the trial Tribunal dismissing the Appellants’ petition was right in the circumstance.”

DECISION/HELD:

In the final analysis, the Court dismissed the appeal.

RATIOS:

• ELECTION PETITION – BURDEN OF PROOF/STANDARD OF PROOF – Burden and standard of proof required where there is an allegation of non-compliance with the provisions of the Electoral Act
• ELECTION PETITION – BURDEN OF PROOF – What a petitioner contesting legality of votes cast or that a candidate was not duly elected by a majority of lawful votes in an election must show; criteria of witnesses who shall testify in proof of allegations
• ELECTION PETITION – POLLING AGENTS – Whether it is only a polling unit agent or a person who was present at a polling unit during election that can give admissible evidence of what transpired at the unit; effect of failure
• ELECTION PETITION – ALLEGATION OF NON-COMPLIANCE WITH THE ELECTORAL ACT – Whether the provision of Section 137 of the Electoral Act, 2022, obviates the need to call an eyewitness in proof of electoral non-compliance and breaches
• EVIDENCE – COMPETENT WITNESS – Who is competent to testify on the conduct of an election?
• EVIDENCE – WRONGFUL ADMISSION/REJECTION OF EVIDENCE – Whether a wrongfully admitted/excluded evidence could constitute a ground for reversing a decision on appeal
• ELECTION PETITION – OVER-VOTING – How to prove Overvoting and when a party will be held to have failed to Prove the Same
• EVIDENCE – EVIDENCE ON UNPLEADED FACTS – Effect of evidence on facts not pleaded
• EVIDENCE – ADDRESS OF COUNSEL – Whether address/argument of counsel can take the place of evidence
• 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
• ELECTION PETITION – BURDEN OF PROOF/STANDARD OF PROOF – Burden and standard of proof on the Appellant in election petition cases; whether failure of the Respondents to adduce evidence in defence of their case will inure to the benefit of the Petitioners
• ELECTION PETITION – ELECTION PETITION PROCEEDINGS – Position of the law on dumping documents in election petition proceedings
• ELECTION PETITION – BURDEN OF PROOF – Whether a Petitioner in an election petition is duty-bound to prove his petition with credible evidence

To read the full judgment or similar judgments, subscribe to Prime or Primsol