By FEMI FALANA

Procedure for filing pre-election cases.     

Pursuant to the powers conferred on the Federal High Court to hear all pre-election cases the Chief Judge directed that originating summons be adopted for commencing such matters. The purpose was to speed up the hearing of pre-election cases. Surprisingly, in the appeal of Lawan v Machina, the Supreme Court allowed the appeal on the ground that the suit was erroneously commenced by originating summons. In the leading judgment of the Court, Nweze JSC held that given that there were allegations of fraud, they ruled that they should have started with a Writ of Summons.

In the minority decision of two other Justices (Agim JSC and Jerro JSC) the majority judgment was faulted on the ground that the election that produced Lawan was illegal and conducted in violation of the Electoral Act, 2022. It was further pointed out that the issue of fraud was not raised in the affidavit in support of the originating summons. In view of the current state of the law, the Electoral Act should be amended to enable the Chief Judge to prescribe any procedure for commencement of pre-election cases.

Onus of proof of election petitions

Under the Electoral Act, a petitioner is required to prove irregularities and non-compliance with the electoral law and that the irregularities and non-compliance with the electoral law have affected the results of the election. In Buhari v Obasanjo (supra), Pats-Acholonu JSC alluded to the impossibility of proving election petitions by a petitioner under the law when he said that “The very big obstacle that anyone who seeks to have the election of the President or Governor upturned is the very large number of witnesses he must call, to the size of the respective constituency. In a country like our own, he may have to call about 250,000 – 300,000 witnesses.”

However, with the introduction of technology, a petitioner is no longer required to call hundreds of witnesses to prove malpractice or non-compliance with the Electoral Act. In order to relieve petitioners the burden of proving election petitions the Uwais Panel had recommended that the onus of proving that an election was conducted in substantial compliance with the electoral law. As the adoption of the recommendation will lead to a proliferation of election petitions, the recommendation should not be adopted.

Under the current electoral law, petitioners are compelled to apply for election materials from INEC, plead and frontload them, and proceed to invite or summon witnesses to give oral testimony or tender documents within the time stipulated by law. It is suggested that once an election is concluded, INEC should be compelled to furnish intended petitioners with copies of election materials within 7 days. In addition, the petitions should be served on the INEC at its headquarters and other respondents either directly or at the secretariats of relevant political parties.

Documents admitted by tribunals are not dumped

In proving an election petition parties may decide to tender election materials without calling witnesses to speak to them. Even though they are admitted some tribunals have questioned the reliance placed on such exhibits on the ground that witnesses did not give oral evidence to prove them. It is said that such exhibits are dumped on the tribunals and therefore should not be relied upon by Judges. With respect, 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. Indeed, by virtue of 109, 111 and 112 of the Evidence Act, public documents like INEC forms can be tendered from the bar without calling the makers of such documents.

Similarly, sections 76 and 132 of the Evidence Act state that no oral evidence can be given to prove the content of a document. Nigerian courts should jettison the theory of dumping evidence as documents tendered and admitted in evidence are subject to scrutiny to ascertain their essential value and attach necessary weight to them. In Arabambi vs. Advance Beverages Industries Limited, Tobi JSC (of blessed memory) stated the law correctly when he had this to say:

“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.

To be concluded… 

•Being the paper presented by Femi Falana SAN at the Retreat of the Joint Committee on Electoral Matters supported by Policy & Legal Advocacy Centre held at Lagos