The Place of evidence in the effectual determination of election petitions

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BEING A PAPER PRESENTED BY SEBASTINE T. HON, SAN, AT THE TRAINING FOR JUDGES OF YOBE STATE LOCAL GOVERNMENT ELECTION PETITIONS TRIBUNALS

HELD IN ABUJA ON 18TH DECEMEBER, 2013

PROTOCOL

 INTRODUCTION

Evidence is the epicenter of any litigation, including proceedings before an Election Tribunal. The reason is very plain: Judges or the Judex are mere mortals who lack divine powers to know of facts that took place behind them; it is only by or through evidence adduced that they can appreciate or comprehend those facts. Thus, in Onya vs. Ogbuji,[1] the Court of Appeal, per Salauwa, J.C.A., held quite correctly as follows:

 

The term evidence has been aptly described as any specie of proof or probative matter legally presented at the trial of any issue, by the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc for the purpose of inducing belief in the mind of the court or jury as to their contentions.[2]

 

The preeminent position of evidence vis-à-vis other processes filed in civil litigation was emphasised by his lordship, Pats-Acholonu, J.S.C., in Neka B.B.B. Manufacturing Co. Ltd. vs. A.C.B. Ltd.[3] His lordship, after holding that “neither the pleadings nor the most forensic eloquence of any brilliant lawyer can be a substitute for evidence,” summed up thus:

 

Evidence whether oral or documentary consists of facts, and facts are the fountainhead of the law.[4]

 

Similarly, his lordship, Agube, J.C.A., delivering the lead judgment of the Court of Appeal held in United Foams Products (Nig.) Ltd. vs. Opobiyi,[5] held that “facts are the fountainheads and forerunners of the law” and that it “is facts that determine the fate of any proceedings.”

With the importance of evidence in litigation, including election petitions, this topic cannot be more apt for this exalted audience and with respect to the job they are about to execute in Yobe State.

 

MAIN TOPIC DISCUSSED

 

In discussing this paper, we shall look as some broad subtopics and or subheadings, ranging from admissibility to evaluation of evidence adduced before or at Election Petition Tribunals. The said subtopics are hereby discussed in turn. Et seq.

 

General principles on admissibility of evidence

The general principles of admissibility of evidence in civil proceedings, barring very few exceptions, are applicable to election petitions, which are also a species of civil proceedings, even though they are sui generis.

The general principles are as stated in the Evidence Act, other pieces of legislation and case law. For instance, section 1 of the Evidence Act, 2011, provides that evidence “may be given in any suit or proceeding….” The phrase “any suit or proceeding” covers or includes election petitions. In Amachree vs. Goodhead,[6] the Court of Appeal held that even though election petitions are sui generis, they are nevertheless civil proceedings; hence the provisions of the Evidence Act are applicable to them.

 

On the other hand, section 2 of the Evidence Act, 2011, provides as follows:

 

For the avoidance of any doubt, all evidence given in accordance with section 1 shall, unless excluded in accordance with this or any other Act or any other legislation validly in force in Nigeria be admissible in judicial proceedings to which this Act applies: Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.

 

The phrase “shall be subject to all such conditions as may be specified in each case by or under this Act” in the above provision, together with the settled doctrine of covering the field, makes the Evidence Act the number one legislation regulating admissibility of evidence; hence any other law, particularly enacted by a State House of Assembly which is in conflict with any provision of that Act, will give way to the latter.

There are other general principles on admissibility of evidence in both civil and criminal proceedings, including election petitions. One of such principles is that whilst a court may admit a piece of evidence if there is no objection and if such evidence is only admissible upon fulfillment of conditions precedent and those conditions have not been fulfilled, it is under obligation to reject a piece of evidence if it is absolutely inadmissible in evidence, especially in view of statutory provisions and it is under a further duty to expunge it from its records if such evidence is wrongly admitted.[7]

Finally, in civil proceedings like election petitions, three principles, broadly speaking, regulate admissibility of evidence, namely:

 

  • Whether such evidence is pleaded;
  • Whether it is relevant; and
  • Whether it is admissible in law.[8]

 

These three criteria have been held to apply to election petitions as well.[9]

 

Pleadings and evidence

Even though evidence has been ranked above pleadings in Neka B.B.B. Manufacturing Co. Ltd. vs. A.C.B. Ltd., supra, the place of pleadings in election petitions cannot be over-emphasised. In other words, pleadings are a necessary tool in the dispensation of electoral justice.

The traditional role of pleadings in civil litigation applies with full force to election petitions, especially when provided for in an enabling statute. I am assuming that Yobe State laws setting up Election Tribunals have made provisions for filing of election petitions, respondents’ replies and petitioners’ replies, in which translates to filing of pleadings before those Tribunals. I will, therefore, boldly proceed, standing on this assumption, to discuss the role of pleadings in the admissibility of evidence in election petitions.

It has been held that the major purpose of pleadings is to give a fair notice of the case which an opponent is to meet so that he may direct his evidence to meet or counter the issues so raised in his opponent’s pleadings.[10] The Supreme Court, in Ihezuchukwu vs. UNIJOS,[11] outlined the following as the functions of pleadings, namely:

 

  • To ascertain the various matters actually in dispute between the parties and those in which there is agreement between them;

 

  • To give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed by them; and

 

  • To provide a brief summary of the case of each party which is easily available for reference and from which the nature of the claim and defence may easily be comprehended, and to constitute permanent record on the questions raised in the action and issues decided therein, in order to prevent future litigation upon such matters and issues already adjudicated between the parties.

 

In a famous election petition,[12] the Supreme Court held that facts are the fountainhead of pleadings and that a party cannot lead evidence on facts not pleaded. This rule agrees with the long-lasting relationship between pleadings and evidence, as can be seen from a great deal of decided cases.[13]

 

Documentary evidence and pleadings

It is necessary at this stage to, brevi manu, comment on one important area on admissibility of pleaded facts: admissibility of documentary evidence. This is because documentary evidence forms the fulcrum of election petitions.

It is now settled law that documents need not be directly pleaded before they will become admissible in evidence.[14] Thus, it has been held in an election petition appeal that documentary evidence need not be specifically pleaded, so long as facts and not the evidence by which such document is covered are expressly pleaded.[15] Also, it has been held that in determining whether or not documentary evidence has been pleaded, express pleading facts in that regard must not necessarily be sought for; but that even pleading by implication of facts necessary to identify such documentary evidence is enough to render it admissible.[16]

However, the above relaxed rules on pleading of documents will not apply when the pleading document, even if taken together as a whole, is vague. Thus, in Nwogu vs. INEC,[17] it was pleaded that the victory of the winner of the contested election was ‘announced in the media by the INEC.’ On the basis of this rather vague pleading, Form EC8E(1), the result sheet of the said election, was sought to be tendered in evidence. The Court of Appeal held the document was inadmissible on account of that vague pleading.

Similarly, the general relaxation of the rule notwithstanding, a party wishing to tender in evidence a document must plead facts relating to such document. Thus, in Amaechi vs. INEC,[18] the Supreme Court, per Aderemi, J.S.C., held, after perusing all the paragraphs of the pleading in question, as follows:

 

For a party to tender a document in evidence, there must have been contained in the pleading, statements of fact relating to that document.

 

The following are some other miscellaneous rules on admissibility or otherwise of pleaded documents, as developed by case law:

 

  • Reference in a document that has passed the acid test of pleading, to another document that has not passed such test means the latter document remains not pleaded, hence is inadmissible.[19]

 

  • Pleading a document to which another document has been attached does not amount to also pleading the said attached document – for admissibility purposes; in other words, facts relating to both the main document and the attachment must be simultaneously pleaded.[20]

 

  • If it is secondary evidence of a document is to be tendered in evidence, the pleading must disclose this fact, to put the opponent on notice as to the nature of his adversary’s case.[21] However, there is no obligation on the concerned party to plead how the original was lost or destroyed, as these are matters of evidence rather than pleadings.[22]

 

Oral evidence and pleadings

Generally, oral evidence must agree with pleadings; because parties are bound by their pleadings.[23] Also, oral evidence “must be accurate in the sense that it must bring out facts as averred” in the pleadings.[24]

The above general rules, however, do not apply in certain situations. The first exception is that oral evidence must not agree word for word with pleadings, to make it admissible; because if they are reasonably close to each other, such oral evidence will be admissible, notwithstanding its minor differences with the pleading in question.[25]

Secondly, even though oral evidence not pleaded must be expunged or goes to no issue if wrongly admitted,[26] if a party leads evidence on matters pleaded but adds matters not pleaded, this alone will not destroy his case entirely: what the court has to do is to expunge the inadmissible evidence but still consider whether what is left of the party’s case will sustain his claim or defence.[27]

Thirdly, a party is not expected to lead evidence on all matters pleaded by him; and if the evidence led by him is enough to give him justice, the court should do so and not decline simply on the basis that he did not lead oral evidence on all the matters he has pleaded.[28]

Fourthly, the mere fact that a party has not pleaded a fact will not deprive him of the right to reply by advancing oral evidence in rebuttal of facts, once such original facts he now wants to rebut are pleaded in his opponent’s pleadings. This right exists in favour of the plaintiff (or petitioner) with respect to matters pleaded by the defendant (respondent)[29] and also in favour of the defendant (or respondent) with respect to matters pleaded by the plaintiff (petitioner);[30] except if the court is of the opinion that such defence ought to be expressly set up.[31]

 

Cross-examination and pleaded facts

There are conflicting decisions on the right of a party to cross-examine a witness called by his opponent. While some decisions are to the effect that a fact or defence not pleaded cannot be extracted under cross-examination and if wrongly extracted, will go to no issue,[32] others are to the effect that a party need not plead a fact before he can comment or cross-examine thereon, if that fact is pleaded by his opponent.[33]

My take on this conflict can be found in my book on the Law of Evidence, which I still adopt, as follows:

 

These latter authorities, with respect, better represent the position of the law on the issue. The former authorities on the issue are, therefore, overruled by implication. The reason is plain enough: if a party’s opponent pleads a fact, his opponent should be left with the choice of cross-examining or not cross-examining on it, in the interest of fair hearing.[34]

 

Relevancy and admissibility

As shown above in Okonji vs. Njokanma, supra, another broad principle regulating admissibility of evidence is whether such evidence is relevant.

Even though the Evidence Act in several sections has made far-reaching provisions on relevancy of evidence generally, it will amount to going beyond the scope of this paper to discuss all of them. We will, therefore, limit ourselves to case law on what is relevant evidence.

In a civil matter regulated by pleadings, a piece of evidence is said to be relevant if it is pleaded by either or both parties; hence if it is not so pleaded, it is irrelevant.[35]

The importance of relevancy of evidence was stated by his lordship, Olatawura, J.S.C., in A.C.B. Ltd. vs. Gwagwada,[36] as follows:

 

Before considering admissibility of any evidence or document in support of a party’s case, it must be shown that the evidence sought to be led is relevant. Even if the evidence is admissible and it is not relevant, the admission of such evidence does not advance the case of the party…. The defendant in paragraph 4.2 of his brief has submitted that for the purpose of admissibility under the law of evidence, every document sought to be tendered in evidence must pass the test of admissibility laid down by the Evidence Act. This submission is however subject to the issue of relevance already referred to.

 

Thus, relevance of any piece of evidence remains a major yardstick for its admissibility.

 

Admissibility as a matter of law

The last of the three broad conditions regulating admissibility of evidence is the question whether such evidence is admissible in law. It has been held that relevancy alone cannot regulate admissibility. Thus, in Suberu vs. State,[37] the Supreme Court, per Fabiyi, J.S.C., held emphatically thus:

 

The court below held that exhibit 1 was admissible against the appellant because it was relevant. With due respect, relevancy is not the only yardstick or test for admissibility. A document may be relevant and still be excluded if there is in existence a law… which renders exhibit 1 inadmissible against the appellant.

 Admissibility of evidence on principles relevant or peculiar to election petitions

 

Frontloading procedure

The frontloading procedure is not applicable to all civil proceedings; it is only applicable when a relevant law permits it. But bearing in mind that frontloading is too broad a topic to be discussed under this paper, I will be rather brief in discussing the principle here.

I have described the frontloading principle in my treatise on evidence in the following terms:

 

Frontloading entails the filing along with, or attaching to, or the listing in, the originating or defence process, as the case may be, of the oral, documentary or other evidence intended to be called be a party to a civil litigation.[38]

 

The Court of Appeal, per Abdullahi, J.C.A., held in Agagu vs. Mimiko,[39] on the meaning and procedure for frontloading, as follows:

 

The witnesses are to enshrine their evidence in chief in depositions which will be adopted at the trial by deponents who will then be cross examined and re-examined…. After leading a witness to adopt his statement, he can then be cross-examined and re-examined viva voce.

 

In the earlier decision of INEC vs. Action Congress,[40] the Court of Appeal had stated the above procedure but had added, quite correctly, that during the examination-in-chief, all disputed documents and other exhibits referred to in written depositions are tendered in evidence. It further held that before any written statement will be treated as evidence, it must be adopted in open court by the deponent.[41]

However, the mere fact that a piece of evidence has been frontloaded does not mean it has become automatically admissible; it must comply with all other rules in that regard, especially pleading. Thus, it has been held that if a document is frontloaded but is not pleaded, it will not be admissible in evidence.[42] But once a piece of evidence is pleaded and duly frontloaded, it will be admissible notwithstanding that it is not referred to in a witness’s written deposition.[43]

In conclusion, the frontloading procedure is a very wide topic of its own; hence cannot be exhaustively considered under this paper.[44]

 

Admissibility of electronic evidence

Many, if not most, of the pieces of evidence tendered in election petition matters are electronically generated. To be admissible, therefore, the provisions of section 84 and other sections of the Evidence Act must be complied with.

Consideration of admissibility of computer-generated evidence is, however, well beyond the scope of this paper.[45]

 

Burden and standard of proof of allegations in election petitions

Case law has developed principles on the burden and standard of proof of a great deal of electoral offences and the consequences of successful proof of such allegations. We shall adumbrate them here.

     Generally speaking, he who alleges must prove; hence the burden of proof lies on the petitioner.[46] But such burden is not static, meaning that once the petitioner has led evidence to prove his case, the respondent or winner must also lead rebuttal evidence to disprove the case of the petitioner.[47]

On standard of proof, election petitions are generally proved by a preponderance of evidence,[48] except where an allegation of criminality is made, in which case proof will beyond reasonable doubt.[49]

Matters to be proved beyond reasonable doubt

The following are some of the allegations held to be compulsorily proved or provable beyond reasonable doubt, namely:

 

  • Allegation of allotment or inflation of votes, manipulation, falsification or alteration of election results.[50]
  • Allegation of violence.[51]
  • Allegations of thug activity and diversion/seizure of election materials.[52]
  • Allegation that fewer persons than required signed Forms EC8A, EC8B, EC8C and EC8D.[53]
  • Allegation of forgery of educational certificates.[54]
  • Allegation of corrupt practices.[55]
  • Allegation that winner of the election is a member of a secret society.[56]

 

In conclusion, however, even though certain matters as shown above must be proved beyond reasonable doubt, failure to tender such proof may not always render the petition unproved; as the doctrine of severance can be applied to see whether the unproved paragraphs of the petition, if severed from the rest of it, cannot defeat such petition.[57]

 Allegation of corrupt practices

We have already shown above that this must be proved beyond reasonable doubt; but there are other principles regarding its proof as well. In Nwole vs. Iwuagu,[58] it was held that a petitioner alleging this must prove that:

 

  • The winner of the election either personally or through an agent acting on his authority committed the practices in question.

 

  • The corrupt practices affected the conduct and outcome of the election; and

 

  • But for such malpractices, he would have won the election.[59]

 

Allegation of wrongful allocation of votes

It has been held that this allegation can be proved by the evidence of the actual officers on the field when the votes were counted or by agents of the petitioner who were alleged to have signed the result sheets.[60]

 

Allegation of falsification of results

In order to successfully prove this, the petitioner must tender two sets of results, the genuine and the fake.[61]

 

Allegation of inflation of results and rigging

Particulars of the inflated figures must be shown by the petitioner who must then compare them with the figures he alleges are the correct ones.[62]

 

 Allegation of incorrectness of results

A party alleging incorrectness of the results recorded can prove his case by calling his agents who were at the collation centres, who will then tender their own copies of Form EC8D.[63]

 

Allegation of undue influence or intimidation

In Ngige vs. Obi,[64] it was held that undue influence is not proved until evidence is led to show that individual voters were in fact induced. Further, that the influence should be judged by the effect it has had on the voters and not by the intention of the person exerting the influence.

 

Allegation that ballot boxes were stuffed

This is proved by producing before the Election Tribunal such stuffed ballot boxes and not otherwise.[65] It has also been held that such produced ballot boxes must be opened before the Tribunal and that the petitioner must call an expert witness to prove that certain ballot papers contain the thumbprint of one or few persons linked to the winner of the election being challenged.[66]

 

Allegations of multiple registrations, accreditations and voting

These allegations can be proved by minimal evidence; and once this is done, will be enough to void an entire election in a particular ward.[67]

 

Allegation that elections did not take place

The Court of Appeal, in Ebun vs. Ebu,[68] held that the voters’ register is the primary evidence to prove whether or not elections took place in polling booths; hence must be tendered to prove this allegation; and that a petitioner who desires to prove this may subpoena the INEC to produce such register.

Indeed, it has been held that tendering of unmarked voter’s card to prove this allegation is not enough; that the voters’ register must be tendered as the best evidence to prove it.[69] It has also been held that this allegation cannot be proved merely by calling witnesses to say they had waited all day long at polling stations without voting; that rather, it has to be proved by tendering the voters’ register.[70]

 

Allegation of unlawfulness or illegality of votes cast

The Supreme Court, in Abubakar vs. Yar’adua,[71] held that a petitioner alleging these must tender in evidence all necessary documents, namely the Forms and other documents used at the election. That he must also call eyewitnesses to testify on these and also to prove how these substantially affected the result of the election. It concluded that both oral and documentary evidence are important and that such oral evidence must explain the import of the documents tendered.

The apex Court reached the same decision in Buhari vs. INEC;[72] but it additionally held here that the witnesses to give oral evidence must be real eyewitnesses and not persons who picked information from the real eyewitnesses.

 

Allegation of over-voting

In ANPP vs. Abdulkadir,[73] the Court of Appeal held that this allegation is proved by the petitioner tendering the statement of result, which should show the number of registered voters, accredited voters and actual voters, to enable the Election Tribunal decide the issue properly, by comparing the statistics in those three columns with the voters’ register.

 


Allegation that winner did not win by majority of lawful votes cast

This is an invitation to compare and contrast figures; and in order to establish this, there must be a proper tabulation of the registered voters, the total number of votes cast and the votes scored by each candidate.[74]

 

Allegation that fingerprints not of those alleged to have voted

This must be proved by an expert witness.[75]

 Allegation that more political parties than registered participated in election

A petitioner alleging this must go further to prove how this has substantially affected the result of the election.[76]

 

Allegation that invalid votes were cast

In seeking to prove this, the petitioner should not rely on the evidence of only one witness but on all witnesses who covered all the polling booths.[77] The petitioner must also prove that such invalid votes were cast on the winner of the election.[78]

 

Allegation of late arrival of election materials

The petitioner must call polling agents as his witnesses and voters who had waited in vain to vote and the voters’ cards of such witnesses and the voter’s register must be tendered in evidence.[79]

 

Allegation that no result sheets were issued

Once this allegation is made and proved, the INEC is under duty to produce the result sheets at the trial, failure of which will be fatal to the winner’s case.[80]

 

 Evaluation of evidence by election tribunals

 General principles on evaluation

Election Petition Tribunals are courts manned by trained Jurists, just like other regular courts. The duty of the Judex presiding over these Tribunals, therefore, cannot be different from the ones imposed on other regulars Judges. These general principles shall, therefore, be briefly discussed here.

It has been held that evaluation of evidence generally requires the court to take into account all the following factors, namely:

 

  • Whether the evidence led by either side is admissible;
  • Whether the evidence is relevant;
  • Whether the evidence is credible;
  • Whether the evidence given by one of the parties is more credible than the one led by his opponent.[81]

 

It has also been held that once a piece of evidence is relevant and has been admitted, the court must evaluate it and give it its due weight.[82] However, evaluation of admitted evidence does not mean giving it undue weight simply on the ground that it has passed the relevancy and admissibility tests. Thus, it has been held that the mere fact that a piece of evidence is relevant and indeed has been admitted does not mean it is cogent and unassailable; that the court is still duty-bound to ascribe probative value to it to see if it is cogent enough to support the case of the party calling it.[83]

 

Evaluation of documentary evidence

Documentary evidence remains the main pillar on which an election petition rests. Proper assessment of this genre of evidence is, therefore, an onerous judicial task.

It must first of all be noted that a party tendering documentary evidence has some duties to perform; otherwise the court’s hands will be tied in respect to evaluation of same. The following are some of the principles developed by case law.

 

  • The party whose documents are admitted must adduce oral evidence of their contents and not leave the court to investigate those contents.[84] Thus, it has been held that oral evidence must be adduce to explain votes cast, even if voters’ registers and result sheets have been tendered.[85]

 

  • This rule applies with full force to documents tendered in bulk in an election petition; and the mere fact that they are bulk documents will not be an excuse not to lead oral evidence to explain their contents.[86] Also, the remedy is only by calling oral evidence to explain such bulk documentary evidence and not by counsel preparing a chart to explain the said documents; because such chart is not tested under cross-examination.[87]

 

  • When evidence is frontloaded by way of filing and adoption of written depositions, this rule is satisfied if the witness explains the contents of the documents he is relying on in his written depositions.[88]

 

  • If certified public documents are tendered by counsel from the Bar, at least one of the written depositions filed must explain the contents and import of such documentary evidence.[89]

CONCLUSION

Election Petition Tribunals have powers to receive and act upon evidence adduced before them. They also have power and are indeed under obligation to evaluate such evidence and reach a fair decision.

Au revoire, my Noble lordships and compliments of the season.

SEBASTINE T. HON, SAN

 

 

 

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