Statement

It is a matter of concern to the Fatherland Group that the Supreme Court, by its decision of 14 January 2020, endorsed an outcome in which the choice of the five million people of Imo State as to the Governorshi p of their state for the next four years was determined by a presumption of law that elections took place in 388 polling units within the State regardless of the reality.

The Fatherland Group believed that it is in the field of democratic rights that society can least afford for disputes to be determined by legal technicalities of presumptions of law and facts, burdens of proof and points of pleadings. The group notes that the outcome of this case, and therefore the elections, turned on different views taken by different judges of the pleadings prepared by the lawyers for the parties. Substantive justice is having a dispute decided on the facts of the dispute while technical justice does not really decide the case on the facts of the dispute rather, it decides the dispute on the rules of court or procedural statutory provisions which does not guarantee that the real dispute is addressed by the court. This was the nub of the question that was directed to the Chief Justice of Nigeria, Mohammed Tanko, by Senator Abaribe during the Senate confirmation hearing of the CJN which Nigerians saw on social media.

The Fatherland Group regrets that the Supreme Court did not take the opportunity presented by this case to nullify the fanciful distinction between “Unlawful Exclusion of Electoral Results” and a complaint made, which is anchored on the “Failure of Elections to take place in a given Polling Unit”. This was an opportunity to make it mandatory for any party who seeks to assert exclusion of votes in a case where INEC has not expressly confirmed that elections were conducted by it in polling units, to first establish that elections took place. The criticism directed at INEC in the judgment that it failed to produce the genuine results for polling units in which it had not confirmed that elections took place appears to us to be misplaced.

The court would have better served the public interest by recognising that the presumption of regularity which operates to make the mere presentation of the Form EC8A by a party to be proof that elections occurred (where the same is not admitted by INEC) is clearly avoiding the realities of the present state of elections in the country which are marred with violence, ballot box snatching, abduction of electoral/returning officers as a result of unhealthy competition between contestants. This presumption also overlooks the practice of contestants forging certificates so as to appear qualified to contest certain positions. In the circumstances where it was not common ground that elections took place in those polling units, the Fatherland Group would have expected the court to have taken more cognisance of the non-admission by INEC, as the body with constitutional responsibility for the conduct of elections, of elections having taken place in the 388 polling units so as not to legitimise what appears to have been a serious irregularity.

It is a widely accepted axiom of law that justice must not only be done but must be seen to be done. This is especially critical in electoral disputes where the interests of all citizens are potentially affected by the outcomes and by legal precedents being set. It is therefore of concern to the Fatherland Group that the written reasons of the Supreme Court, as delivered by Kudirat Motonmori Olatokunbo Kekere-Ekun JSC but unanimously adopted by the whole court, failed to set out all material facts to enable the public to see that the court took all relevant considerations into account and to follow the court’s reasoning. In particular we note that the judgment omitted to set out, or to otherwise address, the votes, if any, obtained in the same 388 polling units by the candidates who were placed in second and third position in the results originally declared by INEC. Had such been set out or addressed, it might have helped members of the public to be satisfied that the petitioner, who had been placed in fourth position on the results originally declared by INEC, had indeed scored the highest overall number of votes in the elections.

Finally, it is a matter of wider concern to the Fatherland Group that due to failings in the electoral process, in the practice of democracy in Nigeria, the outcome of elections is being increasingly being determined less by an arithmetical count of votes actually cast by the people, as it should, and more by the practice and procedure of courts of law and the view of cases taken by a small body of judges. This concern that lawyers and judges are usurping the voice of the electorate can be traced back to the outcome of the 1979 Presidential elections and the litigation which ensued between Obafemi Awolowo and Shehu Shagari. We are concerned that such electoral disputes have become the norm rather than the exception and so the Fatherland Group calls for a comprehensive review of the electoral system to return the choice of political leaders to the judgment of the people.

Summary  Background for  Editors

Governorship Elections were conducted in Imo State on 8th March 2019 in which there were a total of 70 candidates. The elections in the State were organised and supervised by the Independent National Electoral Commission (INEC) who returned RT. Hon. Emeka lhedioha, of the Peoples Democratic Party, as the winner of the election with Senator Hope Uzondinma, of the All Progressives Congress, being placed  in fourth  place.  Uzodinma  being dissatisfied  with  the  announced  results filed  a  petition challenging the INEC return alleging that lhedioha had not been validly elected by a majority of lawful votes cast and seeking nullification of the said return and a declaration that he was the winner of the said election. His central contention was that INEC had improperly excluded results from 388 polling units in which he had scored the overwhelming majority of the votes cast. Specifically he argued that the total votes due to him from the 388 polling units, and which had been so excluded was 213,695 as against 1,903 votes from the same units due to lhedioha. He submitted that had these votes been taken into account it would have been found that he had secured a majority of the lawful votes cast.

The case was ultimately decided on the basis of the view taken by different judges of the issues raised by the pleadings filed by the parties. While the Tribunal and a majority of the Court of Appeal (4:1) took the view that the pleadings required Uzodinma to first prove that elections had actually taken place in the 388 polling units complained of as a necessary pre-condition to successfully arguing that votes which had been cast for him had been improperly excluded by INEC, the dissenting judge in the

Court of Appeal and the whole of the Supreme Court decided that on their view of the pleadings Uzodinma was not required to prove that elections had taken place in the 388 polling units and was entitled to rely on a legal presumption, arising from the presentation in evidence of electoral form EC8A containing election results, that such elections had held.

On this basis the Supreme Court accepted Uzodinma’s case that the 213, 695 votes claimed from the 388 polling units should be added to his score and that it followed that he was the duly elected Governor of Imo State. It has been suggested that as a consequence of the addition of the votes credited to the 388 polling units the total number of votes cast at the election is 953,083 exceeded the total number of registered voters in the State, 823,743, by a figure of 129,340.

Detailed Background

This is a more detailed analysis of the decision of the Supreme Court and the dissenting judgment in the Court of Appeal on which it was based. A detailed analysis of the Tribunal’s decision and the majority decision of the Court of Appeal affirming same is not necessary, although, for the purpose of this analysis, relevant aspects of the decisions will be referred to and or quoted where required.

The Dissenting Judgement

The petition challenging the election result was made to the tribunal on two grounds:

1. The 1st Respondent (lhedioha) was not validly elected by majority of lawful votes cast; and
2. The declaration and return of the 1st Respondent is invalid by reason of non-compliance with the Electoral Act.

The crux of the Appellant (Uzodinma)’s case was that he scored a majority of the lawful votes cast at the election into the office of the Governor of Imo State, held on 9th March, 2019, but INEC, at the Ward, Local Government and State collation levels, reduced his votes by omitting or excluding (from collation at the ward level) his 213,695 votes contained in the polling unit results (Form EC8As) from 388 polling units, where he scored very high votes. He further asserted that, if INEC had added the omitted or excluded votes of 213,695 to the score of 96,458 credited to him, his total score would have been 310,153 which is higher than 273,404, which the INEC used in declaring and returning lhedioha as the winner of the election. Therefore lhedioha was returned as governor based on wrong computation of votes collated from 2,883 polling units. The particulars of the 388 polling units showing the results which were excluded, his scores and those of lhedioha which were left out, were set out in the  Petition.

The Respondent’s response to the complaint was that INEC did not reduce, omit or exclude Uzodinma’s votes from the 388 polling units from collation at the ward, Local Government and State Government and that the result sheets from the 388 polling units which is being relied upon is false

i.e. forged.

In seeking to prove the petition, the Appellants called 54 witnesses and tendered series of Forms EC8A (duplicate), EC8B, EC8C, EC8D, and EC8E among other documents, while the 1st Respondent in his defence, tendered CTC of Forms, EC8A, EC8B, EC8C, and EC8D, and called four witnesses namely; RWl, RW2, RW3 and RW4. The 2nd Respondent called one witness, RW5, the  INEC Officer  in charge  of logistics during the  e lection. [the court did not comment on the EC8A tendered by Emeka and  no reference to the evidence of the INEC officer in charge of logistics].

The forms EC8A tendered in support of the appellant’s case was tendered by PW54 who was the police officer in charge of Operations, Imo State Police Command when the election was conducted. Uzodinma testified as PW 11and his State Collation Agent testified as PW 51.

In delivering its decision in favour of lhedioha the tribunal expunged the evidences of PW 54, PW 11 and PW 51. The oral and documentary evidence of the PW54 was expunged on the grounds that he had no competence and authority to give evidence and tender the documents tendered by him while the evidence of PW 11 and PW 51 were expunged on the ground that both witnesses were not competent to give evidence on what transpired during the election at the polling units. The tribunal’s decision was principally given in favour of lhedioha because it agrees with lhedioha’s position that for Uzodinma’s petition to succeed, he needs to establish that an election did take place and that failure to so do, meant that his petition must fail.

Uzodinma’s appeal to the court of appeal essentially challenges the part of the tribunals decision which expunged the evidence of PW 54, PW 11and PW 51 as well as parts of the judgment where the tribunal agreed with the Respondents that Uzodinma ought to have called polling unit agents “to testify as to the fact that election did take place in their respective polling units.

The crux of Uzodinma’s appeal is that his complaint against the election was to the extent that INEC excluded the votes from 388 polling units and not whether or not elections were conducted in the 388 polling units. Thus, the burden he needs to discharge for the grant of reliefs sought in his petition was to present the form EC8A from the 388 polling units and with the respondent’s failing to prove that the EC8A was forged as they alleged, the tribunal ought to have decided the case in his favour. The Respondents position was that the tribunal’s decision was right because the appellant’s has the burden of first proving that elections occurred in the 388 polling units.

OHO JCA while delivering his dissenting judgement identified that the decision will turn on the question of whether under Nigeria’s Electoral jurisprudence there is a marked difference between a complaint which is hinged on “Unlawful Exclusion of Electoral Results” and a complaint made, which is anchored on the “Failure of Election to take place in a given Polling Unit”. The dissenting judgement was in favour of the Appellants based on the following resolutions of issues:

1. The issues identified to have been joined by the parties: That from the state of the pleadings it is clear that issues were joined by the parties on the question of “Unlawful Exclusion of Electoral Results” and NOT on the question of “Failure of Elections to take place in a number of Polling Units”.

• The Respondent’s pleading: Paragraph 8 of the 1st Respondent’s pleading provides thus:

“8 (i) The 3rd Respondent did not in the process of the collation at the Ward, Local Government and Constituency Collation Centers, incorrectly state the votes of the 1st Respondent and reduce the votes of the Petitioners by excluding results from Polling Units where the Petitioners scored “overwhelming majority of the votes cast”, as alleged or at all. Petitioners have embarked on a scheme to introduce false result sheets into the result of the election. They are thus put to the strictest proof of the origin of the result, the existence of the Polling Units as  well as the distribution of election materials to those purported Polling Units; (page 31)

• The Judge’s estimation of the legal burden of the parties: The Appellants on the one hand, have the burden of proving the reduction, omission or exclusion of their results from collation, the Respondents on the other hand, have the burden of proving that the 388 polling unit result sheets relied upon by the Appellants are forged, having so clearly alleged the crime of forgery, which is required to be proved beyond reasonable doubt. Apart from the foregoing, it is also clear that the Respondents in their Replies denied the existence of an un-collated 388 polling units’ results, which the Appellants asserted were omitted from the collated results; but what did the Appellants as Petitioners at the tribunal had to do? At the trial, the Appellants put Form EC8A issued in the said 388 polling units in issue and the Respondents did not at the hearing adduce any evidence in proof of the allegation of forgery of the said 388 polling units. See Section 135 of the Evidence Act, 2011. The court cited the case of ADELAJA vs. FANOKI (1990) 2 NWLR (PT.

131) 137 @ 153, paras B – D, the apex Court, per KARIBl-WHYTE, JSC, held thus: “…Where the complaint  is that  no such  document  exists, the  proof  of the  existence  of the  document  will be conclusive as to its validity, except where the person challenging the existence of the document is able to show further that the document so proved to exist is a forgery. In such a circumstance, it is well settled that the onus of such proof rests on he who alleges. See Section 137(2) Evidence Act. In such a case since a crime is alleged, the burden is on him who alleges to prove it beyond reasonable doubt. 1st Respondent having not led evidence to show that Exhibit “A” is a forgery has not discharged the burden of proof to show that Exhibit “A” is a forgery.”

• The general provision  of  burden  of  proof  in  civil litigations: The  position remains that  under Section 133(1) of the Evidence Act, 2011 the burden of first proving the existence  or  non­ existence of a fact lies on the party against who the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. Under Section 136(1) of the Evidence Act, (Supra) the burden of proof as the case proceeds may shift from one side to the other.

• The burden  of  proof  as  required  by  the  Paragraph  1 2(2)  and  1 5  of  the  First  Schedule   to the Electoral Act, 2010: The dissenting judge submitted that the Respondents in addition failing to prove forgery also failed to comply with the provisions of Paragraph 12(2) and 15 of the First Schedule to the Electoral Act, 2010 because they failed to plead what they claimed to be the “genuine” results to enable the tribunal compare the two sets of results for the  purpose of determining, which of the two is the authentic result from the 388 polling units.

Paragraph 12(2) essentially place the burden of “setting out the facts and figures clearly and distinctly so as to disprove the claim of the petitioner” on the Respondent in cases where the complaint in the petition is the undue return of the Respondent and the Petitioner is seeking to claim the seat contested for (12(2)). Paragraph 15 requires the Respondent to set out clearly in his reply particulars of the votes, (if any), which he objects to and the reasons for his objection showing how he intends to prove at the hearing that the petitioner is not entitled to succeed in cases where the Petitioner claims he has the highest number of valid votes at the election.

• The  Legal  presumption Section  under  1 68(1) of the  Evide nce Act: By virtue of the provision of section 168(1) of the Evidence Act, there is a legal presumption that elections held in all the polling units on the Election Day. This presumption is rebuttable and the dissenting judge  noted that no issue was joined in the pleadings of the parties to rebut the presumption.

• The  evidential value  of copies of election  results: The dissenting judge agreed with the learned Counsel for the Appellants that the l aw is settled that the  primary evidence of the  holding of an election i s the production of the result in Form EC8A as declared by INEC. See the decision of the Court of appeal in UGWA & ANOR vs. LEKWAUWA & ANOR (2011) LPELR- 4994, per OWOADE, JCA Pp. 49 – 51, para. B, held as follows: “… It is also trite law that the primary  evidence of the results of the election are Form ECBA (statement of results of poll from  polling election): The case of Remi v. Sunday at P. 107 per Salami, JCA and Nwobodo v. Onoh (supra ) are relevant in substantiation. The above authorities are full y applicable to the circumstances of the Appellants in this case.”

• Whether PW54 (DCP Rabiu) has authority to have testified and tender the said Forms EC8A: the tribunal’s view was that PW54 DCP Rabiu Hussaini lacked the authority to tender the Forms EC8A and in so doing he was on a frolic of his own. The dissenting judge disagreed with this position by relying on decided cases as well as the provision of the electoral act. He held that Nigerian case  law now recognizes that copies of the result s given to the Police represent an inbuilt mechanism  under Nigeria’s Electoral  jurisprudence  for  discovering where the truth  lies. He quoted the case of UCHE vs. IGWE & ORS (2012) LPELR – 14439 Pages 36-37 where the Court (CA) submitted thus on the subject;

“…because election matters are sui generis, election result Forms given to   Police Officers are admissible in evidence notwithstanding that they were not the makers of such documents and it did not matter whether such documents  were sought to be tendered by Policemen other than the actual Policemen  that were given copies of such results …”

He submitted further, the evidential value of copies of election results given to Police Officers during election was underscored by this Court in NNADI vs. EZIKE (1999) 10 NWLR (PT. 622) 229 at 238 paras D-G where it was held:

“In my considered view, Forms given to Police Security cum observers at the polling booth as directed by the provisions of paragraph 34 of Schedule 4 to Decree No. 5 of 1999, constitute an  internal  solid  in-built  control  mechanism  or  measure  designed  to  unravel  unlawful

cancellations, alterations, mutilations and jogging of figures during elections. I agree completely with J.H.C. Okolo, Senior Counsel for the Petitioner, that such result as produced by the Police are the best and tenable available source to test the veracity of the party’s contentions on the issue of what in fact were the actual scores made by the contending parties. To jettison the Forms given the Police under any guise is like throwing discretion to the winds as it were …”

The judge also noted that the statutory provisions of Section 63{3) of the Electoral Act 2010 (as amended) and paragraph 22(c) (vi) of INEC Guidelines for 2019 General Elections. Section 63{3) of the Electoral Act 2010 provides thus:

“63(3): The Presiding Officer shall give to the polling agents and police officer, where available a copy each of the completed forms after it has been duly signed as provided in subsection (2) of this section.”

1. Whether the evidence of PW 1 1 and PW 51 has authority to have testified in the case: the tribunal had expunged the evidence of the Appellant and his state election coordinator on the ground that they were not competent to give evidence on what transpired during the election at the polling units, which they did not personally attend. This was based on the position that for the Appellants to successfully prove his case of exclusion of votes he needs to first prove that elections took place at the 388 polling units and that this can only be proved by calling the polling unit agents who accordingly were, the eye witnesses to what transpired at such polling unit. The dissenting Judge disagreed with this position on the ground that the tribunal’s decision was misconceived as the Petitioner’s complaint does not concern what transpired at the polling unit, rather, it relates to the exclusion of votes by INEC. The judge submitted as follows:

the Forms EC8A tendered by these witnesses (PWlland PWS4) were duplicate originals

{Counterparts) handed over to them by the agents who received them, while the Forms EC8B, EC8C, EC8D and EC8E are certified true copies given to them by the 3rd Respondent on their application and upon the payment of the appropriate fees. So that the view expressed by the tribunal concerning the testimonies of the PWlland the PWSl, which derived from the erroneous belief that the witnesses were called to give evidence on what transpired at the polling unit level during the conduct of the election does not hold any water. Once again, this misconception by the trial tribunal is contrary to the case made out in Appellants’ pleading. The settled position of the law in a case founded on exclusion of results is that a candidate  whose results have been excluded is in a position to tender the excluded results.

The court relied on the decisions in the cases OMOBORIOWO vs. AJASIN (1984) 1 SCNLR 108, NWOBODO vs. ONOH ((1984) 1SCNLR 1and SEKIBO vs. UCHENDU (Unreported).

Supreme Court’s decision

As earlier stated, the Supreme Court’s decision was essentially in consonance with the dissenting judgement and it requires no further detailed analysis.  However, there is a need to address the submissions identified with INEC in the judgment of the Supreme Court as well as some other points worth  mentioning.

1. . INEC was identified to have specifically pleaded in paragraph 14 of its Reply to the  petition that the authentic results of the election would be tendered at the trial (page 12).

• RWS who was mentioned in the dissenting judgement is mentioned in the Supreme Court decision to have admitted that men and materials were deployed to the 388 polling units for the election (page 18).

• The Respondent’s counsel submitted that the results tendered by polling unit agents was untruthful because they were signed by the APC polling agents only. (Page 22). While it is clear that the EC8A relied upon was that tendered by the policeman, however, it is reasonable to expect that the result forms tendered by the policeman and the appellant’s agents are identical. It will only be logical that the results were signed by only APC agents if they were the only agents at the polling units. A situation which is most unlikely.

• Counsel to PDP submitted that there was uncontradicted evidence led by DW4, an INEC official AND Exhibit G2RD1- 27 tendered by him to show that elections in the 388 polling units did not hold or were cancelled by the 3rd respondent [INEC] (page 24).

• The court identified that the 2nd respondent (PDP) called one witness while the 3rd respondent did not call any witness and did not tender any documents. (page 34)

• The Justice of the supreme court submitted further in page 35 thus :

“This is more so because the respondents, particularly the 3rd respondent (INEC) denied excluding the votes scored by the appellants in the affected units.

• The EC8A forms were admitted in evidence as counterparts or duplicate original and that on that basis, there need to have it certified by the issuing public regulatory body is dispensed with.

A cursory examination of the above excerpts shows inconsistencies especially on the issue of whether or not elections were held in the 388 polling units.

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