IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA ON FRIDAY, THE 22ND DAY OF JANUARY, 2024. BEFORE THEIR LORDSHIPS
- JOHN INYANG OKORO
- MOHAMMED LAWAL GARBA
- HELEN MORONKEJI OGUNWUMIJU
- TIJJANI ABUBAKAR
- EMMANUEL AKOMAYE AGIM SC/CV/ 1130/2023
- JUSTICE, SUPREME COURT
- JUSTICE, SUPREME COURT
- JUSTICE, SUPREME COURT
- JUSTICE, SUPREME COURT
- JUSTICE, SUPREME COURT
BETWEEN:
- EDEOGA CHIJIOKE JONATHAN
LABOUR PARTY
AND
- INDEPENDENT NATIONAL ELECTORAL COMMISSION
- MBAH PETER NDUBUISI
- PEOPLE’S DEMOCRATIC PARTY
Appellants
Respondents
JUDGMENT
(DELIVERED BY EMMANUEL AKOMAYE AGIM, JSC)
I had a preview of the Judgment delivered by my learned brother, Lord Justice, MOHAMMED LAWAL GARBA, JSC. I completely agree that the appeal be dismissed. His Lordship has with remarkable erudition and insightful reasoning stated the existing law on the difficult questions of admission of testimonies of petitioner’s witnesses, whose witness statements on oath and documents did not accompany the petition within 21 days of filing the petition, the admission of the testimonies of agents not accredited to be at a polling unit and the application of S.137 of the Electoral Act 2022.
With due respect to my esteemed brother, I do not agree that any oral evidence is necessary to prove alleged noncompliance such as overvoting arithmetical error on the face of a result sheet, non-accreditation that is obvious from the record of the BVAS nonrecording of the numbers and other particulars of result sheets, ballot papers and other sensitive electoral materials made available by INEC for the election in Form EC40G, absence. of official mark such as the date, signature and stamp of presiding officer on a ballot paper used to cast a vote in a polling unit, etc.
1.
The holding that some oral evidence was necessary to prove a non-compliance with the Electoral Act that is manifestly disclosed on the face of an election document, is contrary to the express
and unambiguous wordings of S. 137 of the Electoral Act 2022
which provides that-“It shall not be necessary for a party who alleges
• non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals.
or certified true copies manifestly disclose the noncompliance alleged”.
The original and certified true copies of the election documents that manifestly disclose the alleged non-compliance constitute evidence of the said alleged non-compliance. Once the original or certified true copies of an election document is admitted as evidence by any means they become evidence of their contents.
2.
The Tribunal or court is bound to consider them to determine whether they manifestly disclose the alleged noncompliance or not without the aid or assistance of any form of oral evidence. It is for learned counsel to the petitioner to demonstrate this manifest disclosure in his written address or brief by referring the Tribunal or Court to the paragraph of the pleading where the allegation is made and to the particular exhibit that manifestly disclose such non-compliance. The best practice is to plead in the petition in a tabular form, the relevant polling units, the relevant particulars of non-compliance and the votes affected and in the written address state in a tabular form
the relevant exhibit that establishes the pleading concerning the particular unit. This approach will facilitate the court’s evaluation of the exhibit that manifestly discloses the non-compliance particularized in the pleading.
3.
In our present case, the alleged non-compliance concerning over voting and arithmetical errors in the results was correctly stated in a tabular form in the petition, but in the brief, no effort was made to refer to the particular exhibits in the mass of exhibits that manifestly disclose and establish the noncompliance alleged in respect of each polling unit. This should have been done in a tabular form. Learned SAN for the appellant left that task for the court to find out which exhibit relate to
which particular polling unit. This failure on the part of Learned SAN for the appellant made it impossible for this court to find out which of the exhibits disclosed the non-compliance tabulated in the pleadings:
4.
The case law on the application of paragraph 4 (5) of the First Schedule to the Electoral Act 2022 as it relates to the admission of documents that did not accompany the petition
when it was filed and the testimonies of witnesses whose witness statement’s on oath did not accompany the petition when it was
filed is established by a long line of our decisions over time. This case law as correctly restated in the Lead Judgment is that the testimony of a witness, whether compelled or not, whose witness statement on oath did not accompany the petition when it was filed, or a document that did not so accompany a petition is not admissible evidence and if admitted must be expunged.
5
But experience through the cases show that this case law is causing injustice and defeating public expectation of legitimate election law enforcement. The fact is common knowledge and is not reasonably open to question that in Nigeria it is very difficult and impossible to secure the witness statement on oath of an official witness within the 21 days period allowed for the filing of an election petition and that some document relevant to the election and the case cannot be secured before the petition is.
filed. Against this background it is unreasonable to apply paragraph 4 (5) of the First Schedule to the Electoral Act 2022 to exclude the admission of the testimony of a compelled or official witness whose witness testimony on oath could not be secured and filed along with the petition or within the 21 days prescribed for filing election petition or to exclude the admission of a document not accompanying the petition because the petitioner could not obtain same with reasonable diligence or did not know of its existence due to no fault of the petitioner or due to
circumstances beyond his or her control.
6
The experience is that in most cases the petitioners were unable to accompany the petition with the witness statements on oath of a compelled or official witness or readily available witness statement on oath and documents he/she did not know existed or could not have with reasonable diligence obtained within the 21 days period for filing of the election petition. This has resulted in the failure of the prosecution of the petitions. As it is petitions that rely on the evidence of compelled or official witnesses whose witness statements on oath did not accompany the petition or documents that did not accompany the petition could be proved for lack of admissible evidence due to the current approach of judicial application of paragraph S.4 (5) of the First Schedule to the Electoral Act 2022. This approach frustrates acess to justice in election disputes, defeats and not protect the right to vote, the votes of voters and electoral mandates which is the central objective of election dispute resolution. This experience has made it compelling for me to suggest that we should have a rethink and consider departing from or overruling our previous decisions on the point.
7
The experience is that in most cases the petitioners were unable to accompany the petition with the witness statements on oath of a compelled or official witness or readily available witness statement on oath and documents he/she did not know existed or could not have with reasonable diligence obtained within the 21 days period for filing of the election petition. This has resulted in the failure of the prosecution of the petitions. As it is petitions that rely on the evidence of compelled or official witnesses whose witness statements on oath did not accompany the petition or documents that did not accompany the petition could be proved for lack of admissible evidence due to the current approach of judicial application of paragraph S.4 (5) of the First Schedule to the Electoral Act 2022. This approach frustrates acess to justice in election disputes, defeats and not protect the right to vote, the votes of voters and electoral mandates which is the central objective of election dispute resolution. This experience has made it compelling for me to suggest that we should have a rethink and consider departing from or overruling our previous decisions on the point.
8.
This situation demand the application of the twin equitable principles that law does not compel a man to do that which cannot possibly be performed (Lex non cogit ad impossibilia) and that law will generally excuse a default if a party is unable to perform a duty created by law without any default in him and where he has no remedy (impotentia excusat legem). In keeping with this principle, if in the interpretation or application of an enactment the court finds that the duty it imposed is either impossible of performance due to circumstances beyond the control of the person required to perform that duty or because a strict literal application of the wordings of the enactment renders the performance of that duty illusory, impracticable or impossible, it would apply the provision as dispensing with the strict performance of that duty and in this case allow the use of witness statements on oath and documents that were not filed with the petition, but filed after the 21 days for filing election petition as additional witness statements on oath and documents and admit the testimonies of such witnesses as evidence provided the additional witness statements on oath, documents and testimonies of the said witnesses are consistent with the
pleadings in the petition.
9.
Tijjani Abubakar
JUSTICE, SUPREME COURT
APPEARANCES:
S. T. Hon, SAN, with Dr. V. J. O. Azinge, SAN, Chief A. C.
Ejesieme, SAN, E. Fatogun, SAN and Mrs. R. Chris Garube, Esq., for the appellants.
Chief W. Olanipekun, SAN, with D. D. Dodo, SAN, I. A. J.
Offiah, SAN, B. Olanipekun, SAN and B. Nwosu, Esq., for the first respondent.
Abdul Mohammed, SAN, with Salisu Musa, SAN, R. Idris, Esq., O. F. Amedu, Esq., and P. O. Amiukwu, Esq., for the second respondent.
Dr. O. Ikpeazu, San with A. Ali, SAN, T. Maduka, SAN, Dr.
O. Onyia, Esq., and J. Mba Esq., for the third respondent
