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WITNESS DEPOSITION NOT FILED BY A WITNESS AS AT THE TIME OF FILING THE PETITION WILL NOT BE COUNTENANCED

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Peoples’ Democratic Party v. Chibuzor Okogbuo & Ors (2019) LPELR-48989 (CA) at p.24-25, when it said (per Orji-Abadua, JCA) that: “What is deducible is that Witness Deposition filed by a witness not listed in the Petition cannot be countenanced by the Court or Tribunal after the expiration of the time prescribed for the filing of the Petition. It was stressed by this court therein that to allow a Petitioner to file an additional witness statement at any stage of the Election proceedings would destroy the regulated environment that must exist to ensure that both parties to the petition are expeditiously heard and the Petition determined within 180 days from the date of the Petition. This court observed that such an indulgence would remove the control of the pace of the proceedings from the control of the Constitution, the Electoral Act and the First Schedule to the Electoral Act and leave it at the whim of the parties and open the floodgate for all kinds of abuses of the judicial process.”

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WHAT A PETITIONER WHO CONTESTS THE LEGALITY OF VOTES CAST IN AN ELECTION MUST DO

A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an eye witness. No. They must be eye witnesses too. Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of the votes; wrong doings and irregularities which affected substantially the result of the election.

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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ONLY POLLING UNIT AGENT CAN GIVE TESTIMONY OF WHAT TRANSPIRED IN THE POLLING UNIT

In PDP & ANOR V INEC & ORS (2019) LPELR-48101(CA), this Court Per Agim, JCA (as he then was) held that it is only a Polling Unit agent or a person who was present at a Polling Unit during polls that can give admissible evidence of what transpired during the poll in that unit. See also GOYOL & ANOR V. INEC & ORS (2012) 11 NWLR (PT. 1311) 207, 218 and BUHARI V. INEC & ORS (PT.1120) 246, 424 … Under our law, specifically in Section 43 of the Electoral Act, 2022, Polling Agents are permitted to be appointed by Political Parties for each Polling Unit and collation centre. The wisdom in this is for each of the political parties involved in an election to be represented by its own agents. The duties of an agent are to represent the interest of his/her principal. Having regard to the fact that no mortal man can be in all the places at the same time, the law allows political parties to have their agents at all polling units and collation centres. It is therefore not anticipated by the law for any political party to appoint an octopus agent with his tentacles in all the polling units and collation centres. This is humanly not practicable. When, therefore, evidence is required to prove what happened in any polling unit or a collation centre, it is only the agent who witnessed the anomaly or the malfeasance that can legally and credibly testify. See BUHARI V. OBASANJO (SUPRA); OKE & ANOR V. MIMIKO (SUPRA) AND ANDREW V. PDP (SUPRA).

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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PROVING NON-COMPLIANCE IN AN ELECTION

Any Petitioner who complains that the result as declared is either wrong or not in compliance with the Electoral Act has the onus of proving the contrary: see NYESOM V. PETERSIDE (2016) LPELR-40036 (SC). This case was relied upon by the Supreme Court in the case of ANDREW & ANOR V. INEC (2017) LPELR 48518 (SC) where the Supreme Court held per Onnoghen, J.S.C. (as he then was) as follows: “…Secondly, one of the main planks on which the petition is based is non-compliance with the provisions of the Electoral Act, 2010 (as amended). For one to succeed on that ground, it is now settled law that where a petitioner alleges non compliance with the provisions of the Electoral Act, he has the onus of presenting credible evidence from eye witnesses at the various polling units who can testify directly in proof of the alleged non-compliance See Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 315 316: Buhari v. INEC (2008) 18 NWLR (Pt.1120) 246 at 391 392: Okereke v. Umahi (2016) 11 NWLR (Pt.1524) 438 at 473. Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452, etc.”

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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DESPITE ELECTIONS BEING SUI GENERIS, THEY ARE GOVERNED BY THE EVIDENCE ACT

It is important to note here that although Election petitions are sui generis, they are governed by the Evidence Act. See BUHARI V. OBASANJO (2005) 2 NWLR (PT. 910) 241; APC V PDP & ORS (2015) LPELR-24587(SC). — H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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RESULT ANNOUNCED BY INEC IS PRESUMED TO BE CORRECT

The law is trite that the results declared by INEC enjoy a presumption of regularity. In other words, they are prima facie correct. The onus is on the petitioner to prove the contrary. See Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Awolowo v. Shagari (1979 ) 6 – 9 SC 51; Akinfosile v. Ijose (1960) SCNLR 447, (1960) WNLR 160.

— Kekere-Ekun, JSC. Nyesom v. Peterside (SC.1002/2015 (REASONS), 12 Feb 2016)

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TECHNICALITIES IN ELECTION PETITIONS – IT NEVER SOLVES BASIC ISSUES IN CONTROVERSIES

It is now trite law that election petitions are sui generis that is, that they are in class of their own and are governed by different rules. An election petition is by nature a very peculiar proceeding which distinguishes it from an ordinary civil proceeding. See Abubakar v. Yar’adua (2008) 19 NWLR (Pt 1120) 1. In Nwole v. Iwuagwu (2004) 15 NWLR (Pt 895) 61 the Court, held thus: “The courts have often harped on the need to do substantial justice in most cases without dwelling too much on technicalities … in all election matters, the use of technicalities should be avoided, as technicalities merely help to shut the opponent out. It never resolves basic issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matter too must take a form devoid of legal technicalities that tend to leave the litigants more confused. Boldness of a high degree is required of the electoral tribunal, which must never be seen to shy away from obvious grave allegations.”

— J.S. Abiriyi, JCA. Aregbesola v Omisore (2014) – CA/AK/EPT/GOV/05/237/2014

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