By Emem Ekpenyong
FILING LIST OF WITNESSES IS THE EASIEST PART, BUT ARE THEY RELEVANT WITNESSES? MOST IMPORTANTLY, DO YOUR WITNESSES ACTUALLY KNOW WHY THEY ARE IN COURT?
When extras are filed as witnesses, instead of star witnesses, I do not want to hear ‘100 witnesses testified for my candidate and 1 million documents were tendered, yet the tribunal unfairly ruled against us’. The person who is supposed to shoulder that blame basks in the noise generated by thesis writers, while the tribunal is unjustly blamed.
As we approach the next election season…
“In arguing the issue of non-compliance, the Appellants had challenged the election results in enumerated polling units as void because the serial numbers of result sheets, BVAS machines and other sensitive election materials were not recorded by the 1st Respondent prior to the conduct of the election as required by Section 73(2) of the Electoral Act, 2022 and that the 1st Respondent also failed to cancel the results in polling units that disclosed overvoting contrary to Section 51(2) of the Electoral Act, 2022. In proof of this weighty allegations, the Appellants had tendered several exhibits including: Exhibits PCA1-PCA320, certified true copies of form EC8As for 320 polling units; Exhibits PCB1-PCB308, polling unit booklets; while Exhibits PEA1-PEA75 are CTC of IREV copies for the polling units where over-voting were alleged to have occurred and Exhibit PVI-PV25 are agents copies of the form EC8A.
I must pause at this point to note that all of those documents were not tendered through the proper witnesses that could speak to them or demonstrate them. They were tendered from the Bar and the Appellants’ witnesses were called only to identify them. Most of the witnesses in question were not Polling Unit Agents who witnessed the election process at the Polling Units, nor were they even present at the Polling Units to qualify them to serve as eyewitnesses to whatever transpired there. Therefore, they could not competently demonstrate or link the documents to the allegation made by the petitioners. What this simply means is that the entire documents so affected ended up amounting to documentary hearsay. Speaking on the evidential value to be accorded to the documents tendered by the Appellants in proof of the alleged non-compliance, the Tribunal opined at pages 3964 – 3965 of the Record of Appeal, thus: “These documents, Exhibits PCA1 – PCA320, PCB1 – PCB308, PEA1 – PEA75, PEBI – PEB70 were tendered from the bar and were only identified by the PW1-PW12. These witnesses are total strangers to the documents who are incapable of giving evidence to link them to the petitioners’ case.
Again, we note that the polling unit booklets of the forms tendered (Exhibits PCB1 -PCB308) were not complete. Instead of 9 pages, each of the polling unit booklet of forms tendered by the petitioners had only 7 pages. That is, two pages were missing from each booklet that was tendered and there was no explanation for this. In such circumstances, it is only a presiding officer, polling unit agent, registered voter or any such other person that was present at the polling unit and witnessed the election at the polling unit that can give eye witness account of what happened to the polling unit booklet of forms and how it was filled. See Lawal v Matawalle (2024) 12 NWLR (pt. 1951) 33. Since there is no witness who can give an account of why the polling unit booklet of forms that were tendered as Exhibit PCB1-PCB308 were only 7 pages instead of 9 and thus incomplete and inchoate, the said Exhibits PCB1 – PCB308 are thus documents of doubtful provenance that cannot be relied upon by the petitioners to non-compliance with the provisions of the Electoral Act, 2022.
Now what are the contents of the missing pages of the polling unit booklet of forms? This appears to be a rhetorical question and it casts doubts on the quality of these documents tendered by the petitioners that command little or no probative evidential value. Since the contents of the missing pages are not known, the Tribunal cannot speculate on this. Therefore, it cannot be said that non-prior recording, which is a specie of non-compliance, is manifest on the face of these documents. There are doubts that need to be cleared by oral testimony.” The Tribunal concluded at page 3968 as follows: In view of the foregoing, we are constrained to refrain from looking into the Exhibits PCB1 – PCB308, PEB1 – PEB70 among other plentitude of documents placed before us but which we consider as dumped since no competent witnesses wore called lo activate or speak to them.”
In the Instant case, from the total number of 19 witnesses presented by the petitioners to testily in proof of the allegations in their petition, ten of them were local Government Collation Agents, three were Ward Collation Agents, while PW 12 was the Director of Research and Strategy of the Appellants’ Campaign Organization. It is significant that PW 12 played no role in the entire election and/or voting at the Polling Units. Of the 19 witnesses for the petitioner, only five of the witnesses were Polling Unit Agents, who, even though were appropriate as eyewitnesses who witnesses the happenings at their Polling Units, failed to throw more light on the issue of non-prior recording of the serial numbers of election results, BVAS Machines and other sensitive election materials. The Appellants had argued that the documents tendered by them showed the non-compliance on the face of it and as such obviates the necessity of oral evidence in demonstrating the non- compliance by virtue of Section 137 of the Electoral Act. 2022.
This is however not borne out by the evidence on the record. In as much as the provision of Section 137 of the Electoral Act has mitigated proof of non-compliance where the non-compliance is manifestly on the face of the document, it has not completely done away with or relieved the burden of proof of allegations of non-compliance with the Electoral Act This was most recently put in perspective by Garba, JSC in the case of Jonathan v. INEC. (2025) 3 NWLR (pt 1978) 1 at 105, para. C-E where he is lordship reasoned thus: “The provisions of Section 137 of the Electoral Act has not mitigated, done away with or relieved the burden of proof of allegations of non-compliance with the Electoral Act in the conduct an election in election petition proceedings. The decision in Oyetola v. INEC(supra) has settled that position. In the appellants’ case, there was no demonstration of the alleged non- compliance from the documentary evidence tendered by the discredited witnesses called by the appellants in proof thereof. One therefore would wonder how the trial tribunal was expected to embark, suo motu, on an investigation of the non-compliance in order to find the proof for the appellants from the documents tendered. It is not part of the function and duty of the tribunal to embark on a private investigation in order to find evidence and determine the non-compliance alleged.”
Again, in the case of Baba & Anor V INEC & 2 ORS (2024) 14 NWLR (Pt. 1957) 155 at 194, para G-H, Saulawa, JSC equally emphasized the need to call oral evidence, in addition to documentary evidence, when he posited as follows: In my considered view, notwithstanding the provisions of Section 137 of the Electoral Act (supra) and Paragraph 46(4) of the 1st Schedule to the Electoral Act (supra), the petitioner is obligated to demonstrate vide some cogent and unassailable oral evidence clearly demonstrating the alleged non-compliance. The petitioner must not sit on his oars merely predicting reliance upon the provisions of Section 137 of the Electoral Act, 2022 (supra).”
IGHODALO & ANOR v. INEC & ORS (2025) LPELR-81699(SC)
