By M.A. ETTI
About 69 candidates contested the gubernatorial election in Imo State on 8 March 2019 but it was the PDP candidate that was declared winner of the election. That declaration was challenged from the Governorship Election Petition Tribunal to the Supreme Court.
On 14 January 2020 the Supreme Court declared the APC candidate the winner of the election and ordered INEC to issue him certificate of return. The judgment of the Supreme Court has been criticized on various grounds prominent among them is that the court departed from settled principles of burden of proof. It should be noted that our concern here is not the merit of the case but its place in the body of case law.
The relevant facts are reproduced below from the judgment of the Supreme Court:
“The 1st appellant (Udozinma) and the 1st respondent (Ihedioha) were candidates of the 2nd Appellant (APC) and the 2nd Respondent (PDP) respectively in the Governorship Election conducted in Imo State on 8th March, 2019 along with 68 other candidates.”
“The respondents filed replies to the petition, called witnesses and tendered documents in support of their respective positions. After considering written addresses of counsel, the trial Tribunal found no merit in the petition and dismissed it.”
“Dissatisfied, the appellant appealed to the lower court. In a majority decision of 4:1, the lower court dismissed the appeal on 19/11/2019. The appellants are still dissatisfied and have further appealed to this court.”
After reviewing the case – pleadings, evidence and submissions – , the Supreme Court held thus:
“It is thus quite clear that from the state of the pleadings and the finding of the two lower courts, the main issue joined on the pleadings was the allegation that votes due to the appellants from 388 polling units were excluded from the votes accredited to them at the election and that if the said excluded votes were added to their score, they would have emerged as the winners of the election.”
“The question then arises as to how an allegation of exclusion of votes is to be proved. In Buhari vs Obasanjo (supra), It was held that where a petitioner contests the legality of votes cast in an election and the subsequent result, he must tender not only the forms and other documents used at the election, he must also 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 onus was on the Petitioners who challenged the results to prove same on a preponderance of evidence.”
“However, in the instant case, the contention was that at the Ward Collation stage, votes scored by the appellants were unlawfully excluded. The documents required to prove this allegation would be Form EC8A series, which is the primary evidence of an election i.e. statement of results from polling units and Form EC8B, the ward collated results. The appellants called 54 witnesses and tendered Forms EC8A, EC8B, EC8C, EC8D and EC8E series. The 1st respondent also tendered certified true copies of the Form EC8 series and called 4 witnesses. The 2nd respondent called one witness while the 3rd respondent did not call any witness and did not tender any documents.”
“The trial Tribunal and the court below were of the opinion that in order to prove unlawful exclusion of results in the said 388 polling units, it was incumbent upon the appellants to call the polling unit agents to testify to the fact that elections took place in their respective units.”
“A careful perusal of the appellants’ pleading reveals that they did not at any stage challenge the holding of elections in any polling unit. I am of the view that this is crucial. Indeed, their contention was that elections held, they scored votes but their votes were excluded at the collation stage. The need to call the polling unit agents to prove that elections actually held in those polling units did not arise. The authorities of this court requiring the evidence of polling unit agents, polling unit by polling unit are therefore not applicable in the circumstances. This is more so because the respondents, particularly the 3rd respondent denied excluding the votes scored by the appellants in the affected units. In other words, they did not contend that elections did not take place in the 388 polling units. Their contention is that the results relied upon by the appellants are false. That they are not genuine. They pleaded that they would tender the genuine results.”
“Having pleaded that the documents are false, the respondents made allegations of a criminal nature against the appellants. They were required to plead the specific elements of fraud and lead evidence showing the genuine results. Not only must the allegation be proved beyond reasonable doubt, it must also be proved that the appellants personally committed the forgery or aided and abetted the commission of the crime or that they procured the commission of the crime through their agents or officials. It is well settled that mere averments in pleadings do not constitute evidence.”
The general principles of burden of proof which also apply to an election petition are restated hereunder:
(1) He who asserts must prove: section 131 Evidence Act; C.P.C. v INEC (2011) 18 NWLR (PT.1279) 493 @ 540 SC.
(2) The petitioner will lose if no evidence is adduced by either party on a material issue or dispute: sections 132 and 133 Evidence Act; Buhari v INEC (2008) 19 NWLR (pt. 1120) 246 @ 354 SC
(3) Every piece of documentary evidence such as election result must be explained by a witness and the opposing party given an opportunity of cross examination: Adewale v. Olaifa (2012) 17 NWLR (Pt. 1330) 478
(4) The witness must be an eye witness or a signatory to the document: Hashidu v. Goje  15 NWLR (Pt.843) 352; Buhari v. Obasanjo (2006) 2 EPR 295 at 559 – 560; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Buhari v. INEC (2009) ALL FWLR (pt. 459) 1 at 568-569 and Buhari v, INEC and Others (2008) 19 NWLR (pt. 1120) 246 at 391 – 392.
(5) Copies of election results given to the police if available will serve as deciding evidence in case of conflicts between the election results tendered by the opposing parties: Nnadi v. Ezike  10 NWLR (Part 622) 228 @238 CA;
(6) Copies of election results given to the police need not be tendered by as many policemen as the number of election results.
Indeed, many election petitions have been lost for failure to satisfy those requirements. Two major reasons account for such a failure:
(a) An Election Petition must be disposed of within a stipulated timeframe. Failure to meet this condition renders the whole proceedings a nullity. And it does not matter whether the failure was not the fault of the petitioner. Consequently, petitioners are constrained to race against time by calling fewer witnesses than the documents (election results) needed to tender. Thus, testimonies are given and many documents are tendered by wrong persons: Sa’eed v Yakowa  7 NWLR (pt 1352) 124  SC.
(b) Documents tendered without eye witnesses are said to have been dumped on the court and, therefore, have no probative value.
Similarly, election petition tribunals or courts also attempt to beat time by rendering their decisions while deferring their reasons.
Now, applying the general principles of burden of proof enumerated above to the instant case, we find from the judgment as follows:
(1) He who asserts must prove.
The 1st appellant (Udozinma) asserted that he won the election but the results of his votes were excluded by INEC. He produced the alleged results and caused the police their copies.
(2) The petitioner will lose if no evidence is adduced by either party on a material issue or dispute.
The 1st appellant (Udozinma) adduced evidence by calling 54 witnesses and tendering Forms EC8A, EC8B, EC8C, EC8D and EC8E series. The 1st respondent (Ihedioha) tendered certified true copies of the Form EC8 series and called 4 witnesses. The 2nd respondent (PDP) called one witness while the 3rd respondent (INEC) did not call any witness and did not tender any documents.
(3) Every piece of documentary evidence such as election result must be explained by a witness and the opposing party given an opportunity of cross examination.
By calling 54 witnesses who tendered more than 54 documents (including result sheets of about 388 polling units), many documents were not tendered by witnesses who were neither eye witnesses nor signatories to the said documents.
(4) The witness must be an eye witness or a signatory to the document.
The 54 witnesses who tendered more than 54 documents (including result sheets of about 388 polling units) were not all eye witnesses or signatories to most of the documents. Indeed, only 28 were polling unit agents. The 1st appellant (Udozinma) testified as PW11. His State Collation Agent testified as PW51 and the subpoenaed police officer testified as PW54.
This is the crux of the matter. It is the peculiar feature of this case and probably one that makes it unique. The question that agitated the minds of the Supreme Court was: Why did INEC exclude the results tendered by the appellants?
In short, the case moved from (i) production of alleged (conflicting) results to determine the authentic results of the disputed units and ultimately the winner of the election to (ii) whether there were cogent reasons for excluding the results of the said units.
The Supreme Court did not see the burden of the petitioner as one to prove that elections took place in the disputed units but simply as one to show that results of those units were excluded. Thus, the Supreme Court was of the opinion that the general principle or rule of evidence that every election result must be tendered by an eye witness did not apply. In the words of the Supreme Court (at page 35 of the judgment),
The trial Tribunal and the court below were of the opinion that in order to prove unlawful exclusion of results in the said 388 polling units, it was incumbent upon the appellants to call the polling unit agents to testify to the fact that elections took place in their respective units.
A careful perusal of the appellants’ pleading reveals that they did not at any stage challenge the holding of elections in any polling unit. I am of the view that this is crucial. Indeed, their contention was that elections held, they scored votes but their votes were excluded at the collation stage. The need to call the polling unit agents to prove that elections actually held in those polling units did not arise. The authorities of this court requiring the evidence of polling unit agents, polling unit by polling unit are therefore not applicable in the circumstances.
By this pronouncement, the Supreme Court created an exception to that general principle or rule of evidence that every election result must be tendered by an eye witness.
Unfortunately, however, because of the failure of the respondents to produce their copies of the disputed results and perhaps the time limit to deliver its judgment, the Supreme Court did not bother to compute the figures asserted by the petitioners. By implication, it means that the Supreme Court accepted the figures asserted by the petitioners (and supported by exhibits) as proved. As noted earlier, the merit of the case is outside the scope of this paper.