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Tribunalisation of democracy in Nigeria (4), By Femi Falana

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The third part of this piece was published yesterday

Femi Falana

IN Atiku Abubakar & Anor v INEC & Ors LER (2019) CA/PEPC/002/2019) the petitioner was given only 10 days to prove the allegations that Presidential Muhammadu Buhari did not validly win the 2019 presidential election. In the circumstance, he called a few witnesses and tendered volumes of documents. But the Court of Appeal ruled that the documents were dumped and refused to consider them in its judgment. The verdict was upheld by the Supreme Court based on decided authorities. It is submitted that documents which have been pleaded and front loaded and tendered in evidence cannot be said to have been dumped on a trial court.

Indeed, it is misleading to discountenance documents which have been admitted in evidence by election petition tribunals. No provision of the Electoral Act precludes a court from using and relying on documents which were properly tendered, admitted in evidence and marked as exhibits. It is submitted that by the combined effect of sections 109, 111 and 112 of the Evidence Act, public documents like INEC forms can even be tendered from the bar without calling the makers of the document. Similarly, section 132 of the Evidence Act read together with section 76 thereof states that no oral evidence can be given to prove the content of a document. In Bayo vs. Njida (2004) FWLR ([Pt.192) 10 at 71, the court per Nzeako JCA, stated thus: “Like any evidence before a trial court, a document tendered in court is subject to scrutiny on the lines of the evidence proffered in court, to ascertain its essential value. It is my respectful but firm view that the tribunal as part of its duty to evaluate evidence before it was entitled to examine the document. In my view, it did not descend to arena as complained by the Respondent.”

It is pertinent to recall that the Supreme Court put paid to the needless controversy over dumping of documents in the case of Arabambi vs. Advance Beverages Industries Limited (2006) All FWLR (Pt.295) 581 at 603, where Niki Tobi J.S.C. of blessed memeory held inter alia: “Learned Senior Advocate submitted that the learned trial judge was not entitled to conduct private investigations on documents tendered, and on which no evidence was led and thereby arrived at conclusions adverse to the other party. It was further submitted that the trial judge has no power in its duty to do cloistered justice by privately going into chambers to examine documents and start to find faults therein. This is a new one … That a learned judge privately went into chambers to examine documents is not improper. That is the normal practice and that is how a judge discharges his judicial functions. A judge takes all evidence given in court. i.e. oral and documentary et al, and at the end of the day after evidence have been concluded, he retires to his chambers or even his residence as it is always the case, to consider and appraise all the evidence. He cannot, and he is not expected to do this in open court, and in the process of hearing the case or trial … A learned trial judge while evaluating evidence is at liberty to examine and peruse most carefully documents and if he fails to do so he is failing in this duty. In fact, even where necessary, a judge ought to comb to ensure that the credibility of the evidence is ascertained and applied towards the just determination of the case. If doing that is what the learned senior counsel says is tantamount to private investigation, then it is most unfortunate.”

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With the above decision, an election petition tribunal has the duty to look at exhibits tendered before it and make necessary findings. A judge can, however, be excused for making a wrong conclusion from exhibits but cannot be pardoned for failing to look at admissible documentary evidence. Our election petition tribunals are urged to jettison the dangerous practice of rejecting documents on grounds that witnesses have not been called to recite their contents. In the alternative, the Electoral Act should be amended to compel election petition tribunals to rely on documents which might have been tendered and admitted in evidence by petitioners and respondents. In Torti v Ukpabi 1984 SCNLR 184 the Supreme Court held that what was paramount was the relevance of a public document even if it was stolen.

Inconclusive elections: Elections are declared inconclusive by the INEC even when clear winners have emerged in governorship and legislative elections. During the 2019 general elections, governorship elections were declared inconclusive by the INEC in six out of 29 states. It has been said that the phenomenon of inconclusive elections constitutes a threat to the democratic process. The danger would become apparent whenever a presidential election is declared inconclusive. But INEC does not share the public perception that inconclusive elections are a manifestation of a defective electoral system. According to National Commissioner and Chairperson of the INEC Electoral Institute, Mrs. Amina Bala Zakari, inconclusive elections are a product of a strengthened electoral process which is robust and has progressed steadily. She, however, acknowledged that inconclusive elections are cau-sed by “direct intimidation of voters and INEC staff not to use the Smart Card Reader to force over voting; perpetrate violence through the use of weapons including guns to scare away voters in an attempt to influence outcome of elections; disruption/obstruction of elections in an opponent’s stronghold by whatsoever means possible and infiltrating the system through attempts at bribing election officials.”

On his own part the INEC Chairman, Professor Yakubu Mahmoud has stated that “insecurity as a result of violent disruption of processes was the major reason why a number of elections had to be declared inconclusive. There is therefore an organic link between security and the conduct of peaceful elections.” Since inconclusive elections are largely caused by violence the INEC and security agencies should ensure that elections are not disrupted by violence caused by criminal elements who intimidate electoral officers, snatch electoral materials and unleash violence on voters.” To stop the dangerous practice the INEC helmsman has reiterated his call for the establishment of an Electoral Offences Tribunal. Until the Tribunal is put in place INEC has indicated its wish to apply Section 53 of 2010 Electoral Act which deals with over voting and section 26 which deals with postponement due to threat of violence and other emergencies.

According to INEC Guidelines, if the number of registered voters in areas where elections are cancelled are more than the margin with the candidate with the highest number of votes was leading the runner up such election would be declared inconclusive. It is doubtful if the position of INEC is in accord with section 179 (2) of the Constitution which provides that a candidate to the office of the governor shall be deemed to have been elected where, there being two or more candidates- (a) he had the highest number of votes cast at the election; and (b) he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas the state.”  In Honourable Faleke v INEC (2016) WRN/SC. 648 Prince Abubakar Audu who had won the APC governorship primary election  nominated the appellant, Hon. Abiodun Faleke as his running mate and both names were submitted to the Independent National Electoral Commission (INEC), the 1st respondent herein, by the APC as its candidates for the Governorship Election.



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