The Supreme Court Judgment On The 2007 Presidential Election And The Ondo State Governorship Election Tribunal Judgment

The Supreme Court of Nigeria finally laid to rest the controversy surrounding the legality or otherwise of the conduct of the April 21, 2007 presidential election some few weeks ago. Some election monitors both local and international scored low the performance of the Independent National Electoral Commission (INEC), while some others applauded the conduct and the results of the election.

The candidates who lost in the election and their political parties, Messers Buhari and Atiku of the All Nigerian Peoples Party (ANPP) and the Action Congress (AC), respectively, immediately proceeded to the headquarters of the Federal Court of Appeal, Abuja to challenge the winner of the electoral contest, Alhaji Umaru Musa Yar’Adua of the Peoples Democratic Party (PDP). But in the convoluted election petition procedure in Nigeria, it took almost the whole of two years to finally dispose-off the election petition. We are however, gladdened to know that the inordinate period of determining the outcome of election petitions, was part of what was looked into by the electoral reform panel, which has since turned in its report to Mr. President.

Let us now consider the highlights of the judgment and its implications for pronouncements in earlier verdicts by lower election petition tribunals, especially in Ondo State. Analyzed below, are salient excerpts from the Supreme Court judgment on the presidential election and germane commentaries on the Ondo State Governorship Election Tribunal judgment in the recently concluded election petition in Akure which gave victory to Dr Mimiko of the Labor Party. After all, it is trite law that all judgments that are inconsistent with verdicts of the apex court of the land, such as the Supreme Court, are liable to be overturned by appellate courts, to the extent of their inconsistencies. Mr. Justice Niki Tobi (JSC) who read the lead judgment made the following declaratory statements:-

1. A PETITIONER WHO CONTESTS THE LEGALITY OR UNLAWFULNESS 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:-

The judge in the lead judgment went ahead to specify which these election were documents. He said the documents were amongst those in which the results of the votes are recorded. That is, Forms EC8A; EC8B; and EC8C.

In the light of the above pronouncement from the Supreme Court, the waiving of the obligation on the petitioner in the Ondo State election petition tribunal to “tender in evidence all the necessary documents by way of forms and other used at the election” in order to show that the Ondo State governorship election was marred with irregularities, by that tribunal, even when the petitioner had earlier averred in his claims, that he would be relying on those documents to prove his claims that the results of the election were fraudulent, was bound to be fatal to the petitioner. What was observed instead was the in- ability of the petitioner to produce all the documents but an abysmally poor fraction of them. But more curiously, the respondent was penalized by the lower tribunal for the failure and inability of the petitioner to fulfill his legally bounden averment. Any ruling, therefore, contrary to the position of the Supreme Court on the issue of the production of election documents must fail on reassessment or reappraisal.

2. A PETITIONER MUST CALL EYE WITNESSES TO TESTIFY AS TO THE ILLEGALITY OR UNLAWFULNESS OF THE VOTES CAST AND PROVE THAT THE ILLEGALITY OR UNLAWFULNESS SUBSTANTIALLY AFFECTED THE RESULT OF THE ELECTION:-

The implication of the above is that a petitioner must lead evidence in each and all the polling units complained about in his petition. There is no room for so-called supervisory polling agents who were supposed to be ubiquitous in order to be able to testify as to the happenings in the various polling units. But that was both legally and physically impossible and unfeasible, according to Mr. Justice Niki Tobi (JSC). But it was this impossibility that the petitioner did in Ondo state. He was unable to present witnesses to testify to the illegality or unlawfulness of the votes cast in the various polling units. What he did was to merely present those who picked the evidence from eye witnesses and not the eye witnesses themselves. The position of the Supreme Court on the issue of eye witnesses did not inform the judgment of the Ondo state election petition tribunal. The inability of the petitioner to present all the election documents and to call every eye witness to prove the allegation of corrupt practices in the conduct of the election, did not bother the tribunal which went ahead to vindicate the petitioner. We therefore do not need a Solomon to tell us that the judgment of the Ondo state election tribunal cannot and will not stand the test of time.

3. A PETITIONER MUST IN ADDITION TO THE PRESENTATION OF ALL RELEVANT ELECTION DOCUMENTS AND EYE WITNESSES, WHICH MUST GO PARI-PASU, PROVE THAT THE NON-COMPLIANCES WITH THE ELECTORAL ACT AFFECT SUBSTANTIALLY THE OUTCOME OF THE ELECTION:-

Indeed to Mr. Justice Niki Tobi this pronouncement of his, which was in conformity with Section 146(1) of the Electoral Act, is like an albatross in the neck of a petitioner while being like the Rock of Gibraltar behind any respondent. He went on to say, “proving an election petition or proof of an election is not as easy as the Englishman finding coffee on his breakfast table and seeping it with pleasure, particularly in the light of Section 146(1) of the Electoral Act. A petitioner has a difficult, though not impossible task.” The implication of this verdict is that a petitioner in an election must prove his allegations of election malpractices beyond reasonable doubt, because in most cases they are criminal in nature. In the Ondo state example, the petitioner alleged that the respondent or his agents, to wit thugs, policemen, soldiers and the like snatched ballot boxes, stuffed them with ballot papers and above all falsified the result forms but significantly failed to produce a single thug, policeman, soldier or presiding officer as witness to prove these criminal allegations. Could we then say in all legal exactitude that the petitioner has discharged the burden placed on him by Section 146 (1) of the Electoral Act ?

4. COURTS DEAL ONLY WITH EVIDENCE BEFORE THEM WHICH ARE PROCEDURALLY BUILT ON ARID LEGALISM AND DO NOT GO ON A FROLIC JOURNEY TO COLLECT INCULPATORY OR EXCULPATORY EVIDENCE:-

Justice Tobi went on to say that Courts of law cannot go to the market places of public opinion to shop for evidences on which to base their judgments, unless such opinions represent or present the state of the law. Rather, they must wait for evidences and where they found none, the petition must fail, and indeed the Election Tribunal, must as a matter of law dismiss the petition. In contradistinction to the above position of the Supreme Court, the Ondo state election tribunal went ahead to adjudicate on matters not pleaded by the petitioner. For example, the petitioner filed complaints on 69 electoral wards whereas the tribunal went on to cancel votes in 78 wards. That in literary parlance is weeping more than the bereaved. This procedure is frowned upon in law. Courts are not fathers Christmas doling out unexpected relief. As if this was not a sufficient interference in the tribunal proceedings, the Tribunal went on voyages of discovery to exculpate or inculpate, as the case may be, by making findings on late voting, non-accreditation, over-voting and the like which were whole matters unpleaded by the petitioner.

I will like to conclude this piece by quoting again from Mr. Justice Tobi (JSC). He said and I quote, “Nigeria is one vast and huge country made up of so many diversities in terms of tribes, cultures, sociology, anthropology and above all, quite a number of political parties (some large, some small). These diversities, coupled with the usual aggressiveness of Nigerians arising particularly from the do-or-die behavior in politics; there must be irregularities. (Emphasis mine). Courts of law must therefore take the irregularities for granted unless they are of such compelling proportion or magnitude as to, “affect substantially the result of the election”. With that remark I dare say the last has definitely not been heard about the judgment of the Ondo State Election Petition Tribunal.