Thursday, 7th December 2023

The crucial verdicts of presidential election court – Part 2

By Ebun-Olu Adegboruwa
26 September 2023   |   1:37 am
What is more, artificial intelligence will tell you the stand of your judge on the legal issues to be canvassed before him. I believe that this factor played out in these cases, to influence the outcome of the decisions reached one way or the other.

Presidential Election Petition Court

What is more, artificial intelligence will tell you the stand of your judge on the legal issues to be canvassed before him. I believe that this factor played out in these cases, to influence the outcome of the decisions reached one way or the other. In other jurisdictions, counsel would disclose his stand to the client at the time of taking the brief and if he believes strongly in that view, advise the client against the proposed suit or refer him to another counsel. In this particular case, their Lordships even jumped upon books written by counsel to some of the parties wherein he had canvassed a legal point different from the stand he was taking in court. This is also the work of artificial intelligence and it is good for our practice, if properly utilised. 

The merit of the cases
The court held that the petitions were unmeritorious in that the petitioners failed to convince the court that the election was not conducted in compliance with the Electoral Act or that such non-compliance is substantial to overturn the declaration made by INEC returning President Tinubu and Vice-President Shettima. The consequence of the adversatorial regime of our law is that the burden is placed squarely upon the person making an assertion.

Thus, if it is your claim that a particular election has been marred by irregularities or corrupt practices, you bear the onus of proving the existence of that fact. Otherwise, it should just be so easy for everyone to make all manner of claims and expect to be crowned upon it,

In this case, it is the responsibility of the petitioners to prove to the court for instance, that INEC closed down its portal or blocked the iREV and transmission system from the public to enable it manipulate the election result. The Court made a crucial finding that none of the two petitioners tendered a single polling unit result issued by INEC. In one case, the petitioner stated that the said results were blurred and could not be traced to any polling unit whilst in the other case, the Court disqualified the witnesses that tendered the results.

In an election involving 176,000 polling units, 8,000 wards, 774 local government areas, 36 States and the FCT, it will be an uphill task to upturn the declaration of results from these areas without showing factually how the said results should be faulted. The Court was of the view that since the petitioners had agents at the polling units who signed all the result sheets, they could not turn around to claim that the results uploaded by INEC were blurred and thus could not be traced to specific polling units.

Two issues arise from this analysis. First, we must decide on the law to regulate evidence in court between the Evidence Act and the Electoral Act. For the purpose of uniformity and completeness, we should deploy the Evidence Act to regulate evidence in all court proceedings. The issue of the eligibility of witnesses, whether voluntary witnesses or those summoned through subpoena should be decided based on the provisions of the Evidence Act and not the Electoral Act. Evidence is general to all court proceedings, whether in land cases, chieftaincy, maritime, sports and election petitions.

To this end, we cannot isolate elections from the general provisions of the Evidence Act. Evidence is listed as Item 23 in the Exclusive Legislative List of the Second Schedule to the Constitution. Thus, if there is any provision in the Electoral Act regarding the summoning of witnesses that contradicts any provision of the Evidence Act, the latter should prevail. In the regime of land instrument registration, the Supreme Court has recently departed from laws enacted by the various states on the admissibility of land instruments in court, holding that states have no competence to enact laws to regulate evidence in court. Similarly, the courts do often ignore the various Rules of practice and procedure of the Courts which demand that documents to be tendered at the trial be listed and frontloaded since this is not contained in the Evidence Act.

The reason why this is important is that in disqualifying the witnesses in this case, the Court also discountenanced all the documents tendered by them, which decision proved very fatal to the two cases as the petitioners could not possibly proceed without evidence. In essence, there was no foundation for the cases presented by both petitioners beyond the issues of law relating to the status of the FCT, double nomination, dual citizenship, qualification of candidates, etc.

Second, we must also resolve the seeming conflict between the Electoral Act and the various criminal law statutes. Rigging an election is a crime, so too falsification and manipulation of election results, ballot snatching and general corrupt practices. We cannot have two separate standards for the proof of crime, whether in election petition or in other cases. Any killing that occurs during the conduct of an election is simply murder and the standard of proof should be as stated in the criminal law and it should not be treated as mere electoral violence. If this is the case (and indeed it should be), then it means the criminal conduct of parties during an election cannot be determined by the tribunal through an election petition. 
Adegboruwa is a Senior Advocate of Nigeria (SAN).