Aborted Judicial Intervention in Nigeria’s Election Disputes

0

By Ngozi Olehi

The 1999 Constitution makes elaborate provisions for settlement of disputes between persons, between government and citizens and between States as well as between State(s) and Federal Government. Because of its importance, and to ensure credibility and integrity of the electoral process, section 285 thereof specifically provide for election tribunals to adjudicate in election petitions disputes from the State legislative positions to the presidential contests. Section 153(1) of the same 1999 Constitution (as amended) creates the Independent National Electoral Commission as the presumably autonomous electoral umpire while the Electoral Act, 2010 (as amended) provide for detailed procedures and mechanisms for conduct of elections in Nigeria. These are indispensable foundations for virile democratic culture and sustainable development.

Disputes must arise, and these days more frequently and more viciously, because extreme looting of public funds has made governance the quickest route to stunning affluence in Nigeria. For elections to be clothed with integrity, they must meet refined criteria for them to perform their key roles, which are to confer legitimacy on the winners and security on the losers and peaceful change for all. Any negation to established norms of electoral integrity produces devastating outcomes and convolutions like Nigeria is passing through now. Prof. Basil Chukwuemeka Nwankwo, et al, cast on the marble the disturbing consequences of absence of electoral integrity.

Hence, the bad leadership, which had given rise to bad Governance, is merely a reflection of the poor electoral integrity in the country, which had produced disastrous leaders. Lack of electoral integrity produces fools in Government with grave consequences for National development. A fool in power sleeps comfortably on a heap of debts, allow the quality of its own people to degenerate at a frightening rate, facilitates the collapse of moral responsibility, and connives with private interlopers or multinational financial institutions to subject the national economy to an unyielding massive plunder with neither a thought for tomorrow nor a merciful concession to the generations unborn.

In summary therefore, lack of electoral integrity such as witnessed in most past Nigerian elections, had seriously affected national development and nation building by enthroning mediocre leadership, which have been responsible for poor infrastructural development such as roads, housing, electricity, hospitals etc. It also contributed to the poor educational system, low life expectancy and security problems such as armed robbery, hired assassins, kidnappers and terrorism. It would amount to stating the obvious if we say that poor electoral integrity is the bane of national development in Nigeria and the main reason for the present underdevelopment in the country.

In any given situation, electoral integrity is decipherable from statutory and constitutional framework that govern conduct of elections and whether the system tolerates or condones the brigandage that characterize election seasons during the times of movement of election materials, voting, collation and announcement of results. Consequences of fragile content and feeble enforcement of regulatory mechanisms for electoral integrity stare Nigerians in the face today and cast an ominous sign that the vandals of our civilization and democracy are waxing stronger by the day the purported amendments on electoral enactments notwithstanding.

This 2021, Nigeria is ranked third-worst governed nation in the world in the new global good governance index. The index used 34 indicators, which are organized into seven pillars: leadership and foresight; robust laws and policies; strong institutions; financial stewardship; attractive marketplace; global influence and reputation; and helping people rise. Mali, which is undergoing some political upheaval is currently ranked as being better governed than Nigeria. Mauritius, at number 38 on the log, is Africa’s best performer. The report noted that countries that have done well under this pillar are all market economies with sound property rights and stable business regulations. It added that the ability to effectively tackle corruption is the indicator with the strongest correlation with overall good government rankings. The Good Governance Index said the ranking comes amid the COVID-19 pandemic, which has revealed strengths and weaknesses in institutions, laws, and leadership, adding that governance is the deciding factor in whether countries succeed.

The foregoing is the outcome of a grossly compromised electoral system, which cannot but produce the worst leadership ever in Nigeria. The consequences are very devastating. By 2015, Nigeria was the third fastest growing economy in the world next to China and India with a growth rate of about seven per cent yearly. The economy contracted immediately after the swearing in of Buhari in May 2015 and slumped to less than two per cent per annum. There have been two recessions since then. The dollar value of the naira dipped as inflation and cost of living went to the blues. Hardship and suffering became the norm in Nigeria. Unprecedented security challenges made insurgency, kidnapping, bloodletting and sophisticated criminal activities daily features of a nation heading to abyss. In the past few months, more than 2000 lives have been lost in various theatres of “war” in the country. Between December 2020 and March 2021, gangs of bandits seeking lucrative ransom kidnapped a total of 769 students from their boarding schools and other educational facilities across northern Nigeria in at least five separate incidents.

It is disturbing to note that Nigeria is the third most terrorised country in the world, next to Afghanistan and Iraq. A few weeks ago, the Council on Foreign Relations (CFR) and the Harvard Kennedy School in the United States said in a report that Nigeria as a nation is at the point of no return “having showed all the signs of a failed nation.” Upon giving examples of other failed states in the world, the report added.

Each lacks security, is unsafe, has weak rules of law, is corrupt, limits political participation and voice, discriminates within its borders against various classes and kinds of citizens and provides educational and medical services sparingly. Most of all, failed states are violent.

All failed states harbor some form of violent internal strife, such as civil war or insurgency. Nigeria now confronts six or more internal insurrections and the inability of the Nigerian state to provide peace and stability to its people has tipped a hitherto very weak state into failure.

Nigeria’s public debt stock is more than $84billion. The just published 2021 budget implementation report states that the Federal Government spent a total of N1.8 trillion on debt servicing in the first five months of the year, representing about 98 per cent of the total revenue generated in the same period. Of the four Presidents who have led Nigeria since it returned to democracy in 1999, Buhari holds the worst record in terms of economic growth. Olusegun Obasanjo’s regime from 1999 to 2007 had an average growth rate of 6.9 per cent. His immediate successor Umaru Musa Yar’ Adua did even better in his two years with an average growth rate of 7.6 per cent while Goodluck Jonathan delivered 5 per cent growth rate in his six-year term as President that ended in 2015. Nigeria’s GDP per capita declined by 0.02 per cent, 4.16 per cent and 1.78 per cent in 2015, 2016 and 2017 respectively. In 2018, 2019 and 2020, it declined by 0.68 per cent, 0.38 per cent and 4.57 per cent. Six years of contracting per capita has wrecked grievous pain on businesses and households. About 272 firms were forced out of business in 2016 alone, and 50 of them were manufacturing companies.

Buhari is the first elected president of a country to become resident of another nation, while still in power when he spent months in London on medical vacation. The crash of the health system in Nigeria is reflected by Buhari’s very frequent medical trips abroad. In his six years and two months occupation of Aso Rock, Buhari has spent a total of 201 days on foreign medical trips. To justify the imprudence, his Special Assistant recently gave an extremely awkward excuse that his principal has a medical team that has been handling him for forty years and his medical records the team has makes the inexcusable trips imperative. For these 40 years, Buhari has been at the corridors of power and he could not bring the medical expertise he enjoys at Government expense in London to Nigeria.

According to the Nigerian Bureau of Statistics, the Nigerian economy lost 4.58 million jobs in President Buhari’s first year! At no point in its 60-year history has Nigeria’s economy expanded slower than its population for a longer period than between 2015 and 2020. Data from the National Bureau of Statistics (NBS) shows a 1.9-percent contraction in 2020. While none of the three previous Presidents had nothing less 5.5 per cent yearly growth rate, Buhari achieved 0.28 percent. What a shame! The annoying thing is the messiah he takes himself to be even when corruption indices in Nigeria have uncontrollably worsened as thieves in power are more daring and unmindful of economic, national and international consequences of their operations.

Ghana was the world’s fastest growing economy in 2018 with her real GDP growth at market prices at 8.3 per cent. Cote d’ Ivoire with 7.2 per cent and Senegal with 6.9 per cent are two other countries from West Africa in the first ten fastest growing economies in the world. Ghana’s economy represents a rising digital-based hybrid economy, driven by manufacturing and export of various digital tech goodies as well as assembly and export of ships and automobiles. Moreover, that country is also rich in industrial minerals and even exports massive quantity of hydrocarbons. Ghana’s real estate sector is booming. This is another major factor behind Ghana’s high growth in the economic sector. Extreme leadership deficit and therefore appalling governance have consigned Nigeria to the waste bin of life as she lags behind in all development indices evidenced by her 2018 “accolade” as the world’s poverty capital. The country’s leaders are not bothered that they have dragged the nation to economic doom as tribal and religious considerations make them focus on “cow economy.”

Economic prospects at the continental level, as have been predicted by international financial and development agencies, are expected to be high but Buhari does not care a hoot that Nigeria is nowhere to be found. As per the market reports, the continent is forecasted to witness a rise in GDP by six per cent + yearly between 2013 and 2023. The recent growth in the economic sphere of the continent can be credited to the increasing youth populace here as well as enhanced sales in services, commodity and manufacturing. Buhari’s answer during his recent interview with Arise TV concerning Government’s readiness to attract Foreign Direct Investment reveal his ignorance of sound and efficient business regulations as well as conducive economic climate that are critical for entrepreneurship and a thriving private sector without which foreign investors will continually shun Nigeria. He felt on top of the world when he was saying he asked his ministers to and discuss with their governors, traditional rulers and businessmen and that the Federal, State and Local governments have no job vacancies.

If the present Federal Government is not a drawback to Nigeria, why is Buhari and his handlers not remembering that in 1980, a dollar was worth only 78 kobo as against N520 now? Why are they not remembering that Nigerians rode in locally assembled cars, buses and trucks: Peugeot cars in Kaduna, Volkswagen in Lagos, Leyland in Ibadan and ANAMCO in Enugu? Steyr was producing Nigeria’s agricultural tractors at Bauchi. It is important to add, they were not barely assembled here, Nigeria was producing many of the components: Vono was producing the foam components, Exide in Ibadan was producing the batteries, even for the entire West African market, Isoglass and TSG in Ibadan were producing the windshields, Ferodo in Ibadan was producing the brake pads and discs, while tyres were produced by Dunlop in Lagos and Mitchelin in Port Harcourt.

The tyres were produced from rubber plantations in Ogun and Cross River States. Even then, in 1980, Nigerians were listening to Radio and watching television sets assembled by Sanyo in Ibadan. From cotton produced in Nigeria, Nigerians were putting on clothes weaved by UNTL Textile Mills in Kaduna and Chellarams in Lagos.

Then, public water supply was running through pipes produced by Kwalipipe in Kano and Duraplast in Lagos, while toilets were fitted with WC produced in Kano and Abeokuta.

Nigerians were cooking with LPG gas stored in gas cylinders produced at NGC Factory in Ibadan while electricity that powered the industries and homes of Nigerians was flowing through cables produced by the Nigerian Wire and Cable Co. Ibadan, NOCACO in Kaduna and Kablemetal in Lagos and Port Harcourt. Then too, leather tanned in Kaduna was used by Bata and Lennards to produce shoes worn by Nigerians.

Restoring this lost glory will certainly create employment opportunities and re-establishing these has a lot to do with foreign direct investment, which Buhari knows nothing about…most unfortunate. It is President Buhari’s duty to provide the conducive economic condition that will attract foreign direct investment. It is most embarrassing and awkward that he does not know this.

Africa has six of the world’s ten fastest growing economies in 2018, according to the World Bank. Nigeria was not among them and she was simply dismissed as “still experiencing negative per capita income growth, weak investment, and a decline in productivity growth.” Many foreign companies operating in Nigeria either drastically reduced staff strength or relocated to attractive economies where those governments cared for their citizens. Fortunately, Africa’s governments are beginning to develop the required infrastructure and institutions. Across the continent, efforts are underway to improve education and foster a culture of innovation. Moreover, political leaders are implementing reforms aimed at improving business conditions. In the World Bank’s 2019 Doing Business Index, five of the ten most-improved countries are in Africa, and one-third of all recorded reforms occurred in Sub-Saharan Africa. Nigeria is nowhere to be found. The Government is doing practically nothing to speed up international trade and unlock investment and growth benefits. Its most important sinister agenda is achieving freedom of movement of cows. Buhari’s lame excuse of fluidity of oil prices and COVID-19 as the cause of the disaster he has brought to Nigeria cannot be acceptable in the light of the foregoing.

In a 2005 study, the World Bank said the totality of the wealth of a nation has three key inputs; the nation’s produced wealth (e.g. infrastructure), natural wealth (e.g. oil and gas) and intangible wealth (e.g. human capital and quality of institutions). The Bank declared further that worldwide, natural capital accounts for five per cent of total wealth, while produced capital and intangible capital account for 18 per cent and 77 per cent of total wealth respectively, making intangible capital, in fact, the true wealth component of wealthy nations. It discovered that the total economic value of natural assets was $44 trillion worldwide, or $7,000 per person on average, while “intangible” capital accounted for the greatest component of total wealth – worth a massive $540 trillion worldwide.

It is worthy of note that the richest countries of the OECD are characterized by high intangible capital and low natural capital, while the poorest countries of sub-Sahara Africa are characterized by high natural capital and lower intangible capital. The study underlined human capital development, strong institutions and rule of law as the driving tools for optimizing access to intangible capital. These are the keys that triggered Switzerland, a landlocked country with no single natural resource, to the peak of global wealth. To Buhari, human capital is cow, and that is why he is working hard to make cows and their “care givers” live and exercise any manner of liberty in every compound in the South of Nigeria.

Harry S. Truman, a former President of America declared that “without leaders society stands still. Progress occurs when courageous, skillful leaders seized the opportunity to change things for the better.” In the past few years, Nigeria did not stand still, the country gravitated to the jungle and this misfortune underlines the need why there must be radical electoral reforms to get the best in terms of leadership of this country. Incidentally, the political class thinks more of how to rig elections than articulating development agenda that could stimulate the economy and transform improved living standards. The summation is that electoral integrity is key ingredient to credible democracy and sustainable development.

The disaster is so overwhelming. The consequences are very severe and the catastrophe is already causing a generational tragedy. The future of Nigeria has been endangered by the outcome of 2015 presidential elections and has brought to the fore the challenges leadership bears on transformation of economy, political stability and security of lives and property. In the quest to eradicate the foregoing in our democratic culture, it is imperative to do an incisive work that will enthrone sound electoral integrity.

The Supreme Court of Nigeria has identified one flaw on proof of presidential and perhaps governorship election petitions that stiffen election riggers to do their worst since the courts are helpless and therefore cannot bite. Hoodlums have discovered that the fastest route to unspeakable affluence in Nigeria is politics. Those who have not worked before except climbing the political terrain own private jets, build mansions here and there, invest in real estate abroad and the worst is that even as clear thieves, they manipulate their oppressed and deprived citizens to see them as the heroes and messiahs.

Desperation leads to forgery of election result sheets at the polling booths and collation centres and these run into thousands most of the time. Challenging each will mean calling witnesses from each polling unit and the law is so tight now that a petitioner cannot call one witness to study results from a given area and come to testify in favour of a petitioner. The Supreme Court pronouncement in the 2019 presidential election contest is an example. In Atiku Abubakar & anr v INEC & 2 ors17 Muhammad CJN in his lead judgment declared:

With regards to the evidence of PW60, it is clear that he was not on the field to gather the data he used to compute the results he intended the lower court to use to enter judgment for the 1st appellant. In the case of Atiku Abubakar & ors v Umaru Musa Yar’adua & ors [2008] All FWLR (Part 404) 1409, [2008] 19 NWLR (Part 1120) 1 at 173, paras E-G, this court per Niki Tobi JSC (of blessed memory) held as follows:

A petitioner who contests the legality or lawfulness of votes cast in all election and subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the elections. He should not stop there. He must call witnesses to testify that the illegality and unlawfulness substantially affected the result of the election. The documents are among those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election and those who picked the evidence from eye-witnesses too. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and recording of the votes, wrong doings and irregularities, which affected substantially the result of the election.

In the above case, what appeared to be an intelligent shortcut of getting an expert to study the results from eleven focal states and tendering the study through one of the Petitioner’s witnesses could not help the situation. The Supreme Court said thus:

Clearly, the PW60 was not available in the 11 focal states, which he sought to establish the anomalies or irregularities, which the appellants pleaded. The documents used to analyze the results were not made or signed by him. In the process, he even contradicted himself. The court below said this much on page 6169 of the record as follows:

The witness PW60 testified that he used duplicate copies (red copies) of form EC8As to carry out his job and that he utilized Forms EC8A, EC8Bs and EC8C series. Under cross-examination he recoiled and stated that he in fact used certified true copies of EC8As. He did not know Form EC8C.

The said PW60 apart from not being an eye-witness in respect of the areas he testified, he contradicted himself on a material issue i.e. the type of forms used to make the calculations, I am surprised how the single witness was able to detect irregularities and malpractices in polling units he was not present.

The learned law lord declared the law as it is, but it is obvious that no petitioner would, feel happy that even though he lost the case, justice was done. There are other pronouncements by the CJN in the above case on presumption of correctness and regularity in favour of a winner and the virtual impossibility of proving errors in presidential and governorship results, to wit: The law is trite that there is a presumption of correctness and regularity in favour of the results of election declared by the Independent National Electoral Commission in the conduct of an election. This means that except it is proved or rebutted that such results are not correct, they are accepted for all purpose by the Election Tribunal or court. The onus of course is on the petitioner to prove the contrary. See Buhari v Obasanjo; Wike v Peterside [2016] 7 NWLR (Part 1512) 452 at 532-533.

There is no doubt the task of establishing a petition on the ground of non-compliance is a herculean and daunting one placed on the petitioner by law. A petitioner who desires and urges the court to set aside the result of an election petition on ground of non-compliance with the Electoral Act has the onerous duty of proving the alleged non-compliance by calling witnesses from each of the polling units complained of. It has to be noted that he does not just call any witness. He must present eye-witness, i.e. those who were present at the various polling units across the election area. In the instant case, the entire country. It is indeed a daunting task. See Andrew v INEC [2018] 9 NWLR (Part 1625) 507; Edankumoh v Mutu [1999] (620) 633 at 653. This court observed this much in Buhari v Obasanjo [2005] 13 NWLR (Part 941) 1 at 299 paragraphs F-H per Pats-Acholonu JSC 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 due to the size of the respective constituency. In a country, like our own, he may have to call about 250, 000 – 300,000 witnesses. By the time the court would have heard all of them with the way our present law is couched, the incumbent would have long finished and left his office and even if the petitioner finally wins, it will be an empty victory bereft of substance.

I hasten to say that the above decision was rendered when there was no time frame for the hearing and determination of election petitions. It is more difficult now under the present legal regime…where the Election Tribunal or court has 180 days to hear and determine petitions. Where is the time to call such number of witnesses? I say this to demonstrate the frustration of a petitioner seeking to set aside the election on ground of non-compliance.

With the way the “law is couched” as the learned law lord pointed out above, the road is closed against a petitioner even before he files his processes to challenge a presidential or governorship election. Another smart way that a counsel for a petitioner would have used was getting INEC to certify the results of the election and the collation sheets and tender them from the Bar without having to call all the numerous witnesses. But there is another startling roadblock. In the same Abubakar v INEC, the Supreme Court declared: On issue of dumping of documents on the court below, the learned counsel for the appellant submitted that there was no need to call the makers of those documents tendered from the Bar because they were public documents duly certified. On page 37, paragraphs 7.17 of their Brief, it is submitted thus:-

The Court of Appeal based only on presumption held that the appellant required to call witnesses who have knowledge on the exhibits tendered even the said exhibits are certified true copies. We submit that the lower court did not only ignore its duty, but its judgment also jettisoned trite position of law that when a public document is duly certified, there is no need whatsoever to call the makers of such documents or those knowledgeable on it to testify. We commend the case of Magaji v Nigeria Army [2008] 8 NWLR (Part 1089) 338.

The version of the law I know on the subject (i.e. if there are other versions) is that when documents are tendered from the Bar, such documents have no probative value until the makers of such documents are called to testify on the document and they are subjected to cross-examination oil (sic) them it cannot be as argued by the learned silk for the appellants above. Whether it is a certified public document or any other document, the need for the maker to testify and be cross-examined on it has not yet been jettisoned by this court. I have read the case of Magaji v Nigeria Army relied upon by the appellants. This court did not state, as the appellant wants us to believe.

By these pronouncements, the essence of certification of documents and tendering them from the Bar is gone. Everything has been trashed down to documentary hearsay. This appears to be justified by section 37 of the Evidence Act, 2011, which provides thus:
Hearsay means a statement- (a) Oral or written made otherwise than by a witness in a process; or Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for purpose of proving the truth of the matter stated in it. (b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for purpose of proving the truth of the matter stated in it.

By these Supreme Court pronouncements, it is useless certifying polling booth results and collation documents since they have no probative value unless tendered though the makers. It also means since there is no time for fielding between 250,000 to 300,000 witnesses, it is needless filing any election petition to challenge any return by INEC. It means also that there is no provision for a statistician or any election expert to study results from say eleven States or more, as in the above case, and coming to court or tribunal to testify of irregularities, forgeries, wrong entries of figures in any election or collation document. So, Nigerians do need to see good governance to make a decision on whom to vote for. Rather, the worst of the political class needs to simply strategize to install sophisticated rigging machinery to outwit their opponents. That is the essence of the popular statement, “declare me winner and let whoever likes go to court” because that vandal knows that the tribunals and courts are terribly castrated and therefore impotent to reverse blatant wrongdoings.

Section 37 of the Evidence Act, 2011 describes those documents as documentary hearsay and by section 38 thereof, they are therefore inadmissible. But what of section 146(1) of the same Evidence Act, 2011 which provides thus with respect to presumption in favour of certified true copies of documents:

(1) The court shall presume every document purporting to be a certified true copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. (2) The court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed, the official character, which he claims in the document.

By the foregoing presumption in favour of certified true copies of public documents, election results duly certified by the same electoral body – the Independent National Electoral Commission, which organized and conducted the election and is a usual statutory party in an election petition, can be tendered from the Bar to obviate the need to call hundreds of thousands of witnesses to prove a presidential or governorship election petition. If the tribunals and courts can apply the statutory presumption of correctness of results prepared by INEC, they should also apply the presumption statutorily preserved for results and other documents duly certified by INEC. Any amendment to the Electoral Act, 2010 should prescribe the way out by insisting that results or other documents which are duly certified by INEC can be admitted from the Bar. If there is no legislative solution to this latent but also very grievous misfortune, there is no need filing election petitions. The obvious implication is that Nigeria will continue to sink as hoodlums continue to lay siege on the politics and governance.

Another crucial point is burden of proof in election petitions. When INEC declares a result, there is a presumption that the result is correct. This presumption is rebuttable and the onus is on the petitioner to disprove or rebut the presumption. In other words, the burden is on the person who denies the correctness and authenticity of the return of a candidate to rebut the presumption of correctness in favour of the return. Ogunbiyi JCA (as he then was) captures the position of the law in Awuse v Odili when he declared:
The law is trite that the consideration of the respondent’s case did not arise until and unless the petitioner had made out a case. In other words, a duty lied on the petitioner, who alleged, to succeed on the strength of his own case and not on the weakness of the defence.

Considering section 285 of the 1999 Constitution (as amended) which limits the trial duration of election petitions to 180 days, this is an unfair burden on a candidate that merely contested an election but did not conduct it, had no custody of essential result documents, did not appoint polling clerks and other adhoc staff at each polling station and cannot attest to the competence and impartiality of collation officials. He did not commit any crime by seeking to serve. INEC should prove that it substantially complied with the law and election guidelines in conducting an election. The Commission must certify every form from each polling booth to every collation centre and publish as it is declaring its result and returning a candidate. These will make INEC accountable to, not just the candidates, but the entire citizenry.

The law that states that when the Electoral commission declares a result, there is a presumption of that the result is correct23 MUST be interpreted not to apply to election petitions. Presently, the burden is on the person who challenges the correctness and authenticity of the result to rebut the presumption of correctness in favour of the return. In furtherance of this, the National Assembly should amend sections 131 and 132 of the Evidence Act 2011 upon which this injustice has been predicated to exclude their operations to election petitions. These provisions declare: 131(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person
132. The burden of proof in a suit or proceeding lies in that person who would fail if no evidence at all were given on either side.

By these provisions, the entire burden to rebut the presumption of correctness of any result is on the petitioner even if the result was manufactured to secure the return of a favoured or fraudulent candidate. Oftentimes, it is not easy to accomplish this, more so with the time constraints and other roadblocks against a petitioner. The amendment as aforesaid is to transfer the burden of proof to the Commission which must give a credible and transparent account of the correctness of the process it conducted and thus convince the citizens and the court that, baring minimal or negligible infractions arising from inevitable human factors, it was substantially impartial and independent in discharging its statutory duties. This will, inter alia, stop stealing of election result sheets from a State by desperate politicians and using same in another State to smuggle in false figures to secure a return by all means and at the same time load the petitioner with the burden of proof of invalidity of same and to what extent that fraud or blunder affected the overall score.

From the totality of the forgoing, Nigeria is doomed if, in spite of sections 6 and 285 of the 1999 Constitution (as amended), the intervention of courts and the tribunals are technically aborted because circumstances, deliberately created by riggers, have rendered the courts impotent in exercising jurisdiction over election disputes to the advantage of the fraudulent of the candidates. But the courts are traditionally jealous of their jurisdictions. This protectiveness can be anchored on section 6 of the Constitution, which confers judicial powers on the Judiciary and section 285 which create the constitutional framework and time frame for trials and appeals in election petitions disputes. This can be further sustained by the purposive rule of interpretation of the Electoral Act, 2010 (as amended) and the relevant provisions of the 1999 Constitution that create the platform for conduct of elections.

In so submitting, it is pertinent to note that election petitions are sui generis, that means, they are governed by special laws that are, inter alia, devoid of technicality. In Mohammadu Buhari & anr v INEC & ors24 Niki Tobi JSC declared:

The whole concept of Election Petitions being sui generis, in my view, is to project the peculiarity of the petition in terms of the reliefs sought, the time element and the peculiar procedure adopted for the hearing of the petition and all that. The Practice Directions, 2007, is a classic example of referring to Election Petitions as sui generis. No single Section of the Act or paragraph of the Schedule to the Act can qualify for the latinism, sui generis. It is the total jurisprudence of election that is sui generis, not a Section of the Act or schedule to the Act.

In view of the above, a special approach ought to be adopted in giving interpretation to the provisions of the Electoral Act and indeed the sections of the Constitution that pertain to conduct of elections. Accordingly, neither the 1999 Constitution (as amended) nor the Electoral Act, 2010 (as amended) expressly nor impliedly contemplate that 250,000 to 300,000 witnesses should testify to prove non-compliance with the provisions of law on conduct of elections. There is no express provision of the said Electoral Act specifically compelling reliance on sections 37, 38, 131, 132 and 146(1) of the Evidence Act, 2011 in dealing with or adjudicating on election petitions. The outcome of the application of these provisions of the Evidence Act, 2010 is the one that terribly corrodes or erodes the integrity of the tribunals and the courts and irritates innocent bystanders.

Obviously, if the National Assembly refuses to amend the Electoral Act, 2010 to ensure electoral integrity, the courts should not fold their hands and watch Nigeria go extinct. The way out is a resort to purposive rule of interpretation. Even though from all indications, the National assembly and the Presidency appear poised to take advantage of impending electoral disaster to perpetuate themselves in power in spite of their extremely poor performance, it cannot be concluded that that was the intention of the legislature. In arguing this issue at the trial court, the 1st Respondent defeated himself even by the authorities he was relying on. In Marwa & anr v Murtala Nyako & ors25 the Supreme Court held:

The object of interpreting statute or the constitution is to discover the intention of the legislature, which intention is usually deduced from the language used. The golden rule of interpretation of constitutional provisions is that words of constitution must prima facie be given their ordinary meanings if the words are not ambiguous. The approach of the court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim: ut res magi, valeat quam pereat. It is not the duty of the court to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words sense of such provisions will serve to enforce and protect such ends. (highlighting ours for emphasis)

From the above pronouncement, if, by any rule of interpretation, the obvious ends of the Constitution and indeed the Electoral Act would be defeated, then that interpretation must be avoided. One of the radically advancing judicial systems in the world is that of India and an Indian jurist, Justice G. P. Singh in his book (2010) “Principles of Statutory Interpretation” 12th Edition at page 3 says: A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the ‘intention’ of its maker. A statute is to be construed according “to the intent of them that make it and the duty of the judicature is to act upon the true intention of the Legislature – mens or sentential legis. See also Vishnu Pratap Sugar Works (Private) Ltd v Chief Inspector of Stamp, U.P AIR 1968 SC 102 @ 104; Institute of Chartered Accountants of India v Prince Warehouse AIR 1998 SC 74, Maunsell v Olins [1975] 1 All ER 16 @ 19 HL.

The learned and erudite jurist continued at page 7 of the Book: Legislation in a modern state is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience.

The position is India is similar to that of England. In R (on the application of Quintavalle) v Secretary of State for Health, [2003] 2 All ER 113 @ 118, the Houses of Lords, for per Lord Bingham declared: Every statute other than a pure consolidating statute is, after all, enacted to make some changes, or address some problem, or remove some blemish or effect some improvement in the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole and the statute should be read in the historical context of the situation, which led to its enactment.

Accordingly, ‘purpose’ has become a cardinal principle in literal interpretation of statutes in advancing democracies. Justice Singh referred to above thus: at page 12 of his Book: The intention of the Legislature thus assimilates two aspects: in one aspect it carries the concept of ‘meaning’, ie. what the words mean and in another aspect, it conveys the concept of ‘purpose and object’ or the ‘reason and spirit’ pervading through the statute. The process of construction, therefore, combines both literal and purpose approaches. In other words the legislative intention ie the true or legal meaning of an enactment is denied by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. See State of Hrmachal Pradesh v Kailash Chand Mahajan AIR [1992] SC 1277 @ 1300.

The purpose or object of an enactment relates to the mischief to which the enactment is directed and its remedy, legislative intention relates to the legal meaning of the enactment. The formulation of the two have received the approval of the Indian Supreme Court which called it the cardinal principle of construction in Union of India v Elphinstone Springing and Wearing Co Ltd: District Mining Officer v Tata Iron and Steel Co.

If the present unfortunate scenario is sustained, it means once INEC declares any candidate as having been elected, the powers exercisable by the courts and the tribunals pursuant to sections pursuant to sections 6 and 285 of the 1999 Constitution (as amended) become an empty shell since the tribunals will need to call between 250,000 and 300,000 witnesses in order to adjudicate over any complaint of con-compliance with the Electoral Act. It means presumption of correctness of even forged results by desperate and fraudulent candidates must hold sway. It means duly certified INEC results will be treated as documentary hearsay and therefore inadmissible if the same petitioner does not call hundreds of thousands of INEC staff whether permanent or ad hoc as witnesses to prove their genuineness when they were fraudulently disregarded during collation.

It is trite that law does not command impossibility. If an interpretation will lead to the impossibility of fielding 300,000 witnesses in a governorship or presidential election petition, the alternative interpretation of use of analysis of experts who analyzed the collated results and testify of discrepancies, forgeries and other atrocities in them should be adopted because the legislature could not have intended such evils to go unchallenged or unpunished. In view of section 146 of the Evidence Act, 2011, the legislature could not have intended that after certification of results duly issued by INEC, witnesses will still be called for each of them in a case that the same INEC, which certified them, is a statutory party. The systemic rot in our political culture can effectively be addressed by a purposive approach to constitutional and statutory interpretation, as espoused above. The Indian Supreme Court in Reserve Bank of India v Peerless General Finance and Investment Co. declared:

Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation must match the contextual. A statute is best interpreted when we know why it was enacted.

A literal and mechanical construction should be disregarded if it conflicts with some essential requirements of democracy enshrined in the Constitution and if it is a slap on fair play, common sense and justice which the legislature could never have intended to throw over board. It is trite that the courts are generally enjoined to apply constructions that are agreeable to justice and reason. Also, in determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance be pressured to be the true one. Danckwets LJ declared in Artemiou v Procopiou.

An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.
It is also important to draw attention to what the Supreme Court of Nigeria has declared in Marwa & anr v Murtala Nyako & ors that where a court is faced with alternatives in the course of interpreting the constitution or statute, the alternative construction that is consistent with smooth running of the system shall prevail. Therein, Onnoghen JSC (as he then was) in his lead judgment declared:

I am guided by the principles of interpretation of the provisions of the constitution which enjoins the court to interpret the constitution as a whole taking into consideration, related sections as stated in A. T. Ltd v A. D. H. Ltd [2007] 15 NWLR (Pt, 1056) 119 at 166-167, thus:

It is settled law that when a court is faced with the interpretation of a constitutional provision, the entire provision must be read together as a whole so as to determine the object of that provision, secondly, it is settled principle of law that where a court is faced with alternatives in the course of interpreting the constitution or statute, the alternative construction that is consistent with smooth running of the system shall prevail as held in Tukur v Government of Gongola State [1989] 4 NWLR (Pt 117) 517 at 579; I must remember that is court has said it several times that the provisions of the Constitution ought to be read and interpreted as a whole if that related sections must be construed together…

Finally, I must approach from a view point that since the decision of this court in Rabiu v Kano State [1981] 2 NCLR 293, this court has opted for the principle of construction often expressed in the maxim, ut re magis valeat quam pereat. This means that even if the alternative construction are equally open, I shall opt for the alternative which is to be consistent with the constitution read as a whole as set out to regulate, and to the alternative which will disrupt the smooth development of the system.

Every citizen qualified to contest an election has a right to do so and this interest must be protected by law. When it is inordinately breached, the court has a duty to intervene when called upon. To abdicate from this duty by construing into the applicable law a situation of judicial helplessness, any judgment it delivers on the basis of this is devoid of justice. In Chigozie Eze & ors v Attorney-General of Abia State, the Supreme Court held that:

It is a general principle of law of great antiquity to the effect that where there is a violation of right, there must be a remedy. Put in another way, ubi jus ibi remedium – meaning where there is a right there is a remedy – See Bello v Attorney-General, Oyo State [1986] 5 NWLR (pt 45) 828; F.B.N. Plc v Associated Motors Co. Ltd [19998] 10 NWLR (Pt. 570) 441; Labode v Otugu [2001] FWLR (Pt. 43) 207, [2001] 7 NWLR (Pt 712) 256; Oyekanmi v NEPA [2000] 12 SC (Pt 1) 76 @ 84, [2001] FWLR (pt. 34) 404.

Failure of justice is an invitation to anarchy as the losers and their supporters resort to self-help and cause general mayhem that endangers security and security infrastructure as well as destroy the machinery for due administration of justice. Society is the victim if power is acquired when the electoral system lacks integrity, accountability and transparency. The devastation of Nigeria is a regrettable example. Resort to purposive rule of interpretation can save Nigeria now.

LEAVE A REPLY

Please enter your comment!
Please enter your name here