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Muhammadu Buhari v. Independent National Electoral Commission & 4 Ors. (2008) – SC

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➥ CASE SUMMARY OF:
Muhammadu Buhari v. Independent National Electoral Commission & 4 Ors. (2008) – SC

by “PipAr” Branham-Paul C. Chima, SAL.

➥ COURT:
Supreme Court – SC 51/2008

➥ JUDGEMENT DELIVERED ON:
Friday, the 12th Day Of December 2008

➥ AREA(S) OF LAW
Election petition;
Affidavit swearing;
Irregularities.

➥ PRINCIPLES OF LAW
⦿ THE EFFECT OF A COURT PRACTICE DIRECTION
Practice Direction, as the name implies, directs the practice of the court in a particular area of procedure of the court. A Practice Direction could be described as a written explanation of how to proceed in a particular area of law in a particular court. The word “practice” in its larger sense like procedure, denotes the mode of proceedings by which a legal right is enforced as distinct and separate from the law that gives and defines the right. The word “practice” is the form, manner and order of conducting and carrying on suits or prosecutions in the courts, through their various stages according to the principles of law and the rules laid down by the respective courts. Practice is our adjectival law, that is, the law regulating procedure; for example, the law of pleading, procedure, evidence, etc. They are rules of civil conduct which declare the rights and duties of all who are subject to the law and who come before the court to seek redress. The dictionary meaning of the word “direct” in our context is an order conveying instruction by a person in authority or backed by an authority; the refusal to carry it out is on the pain of sanction or punishment. In law, “direction” in our context, means command or precept emanating from an authority, who in the 2007 Practice Directions, is the President of the Court of Appeal. What is the legal status of Practice Directions? Practice Directions have the force of law in the same way as Rules of Court. I held in Abubakar v Yar’Adua (2008) 4 NWLR (Part 1078) 455 at 511 that Rules of Court include Practice Directions. (See also Owuru v Awuse (2004) All FWLR (Part 211) 1429). Practice Directions will however not have the force of law if they are in conflict with the Constitution or the statute which enables them. — Niki Tobi, JSC.

⦿ COURT CANNOT READ INTO THE CONSTITUTION WHAT IS NOT THERE
Courts of law, in interpreting the Constitution or a statute have no jurisdiction to read into the Constitution or statute what the legislators did not provide for, and a fortiori read out of the Constitution or statute what is provided for by the legislators. In either way, the courts are abandoning their constitutional functions and straying into those of the Legislature by interfering or interloping with them. As that will make nonsense of the separation of powers provided for in sections 4 and 6 of the Constitution, courts of law will not do such a thing, whatever is the pressure by Counsel. — Niki Tobi, JSC.

⦿ THERE IS A REBUTTABLE PRESUMPTION THAT AN ELECTION RESULT DECLARED BY A RETUNING OFFICER IS CORRECT
Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. (See Omoboriowo v Ajasin (1984) 1 SCNLR 108; Jalingo v Nyame (1992) 3 NWLR (Part 231) 538; Finebone v Brown (1999) 4 NWLR (Part 600) 613; Hashidu v Goje (2003) 15 NWLR (Part 843) 361 and Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1). — Niki Tobi, JSC.

⦿ BURDEN OF PROOF IN A CIVIL CASE – EVIDENTIAL BURDEN
Section 137 of the Evidence Act, 2004 provides for the burden of proof in civil cases. The burden of first proving the existence of a fact lies on the party against whom the judgment of the court could be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which might reasonably satisfy a court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively until all the issues in the pleadings have been dealt with. Where there are conflicting presumptions, the case is the same as if there were evidence. By section 137, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party by virtue of subsection (2). And so the burdens change places almost like the colour of a chameleon until all the issues in the pleadings have been dealt with. By section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the subsection, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the subsection, will be so on successively until all the issues in the pleadings have been dealt with. Section 139 of the Evidence Act provides for the proof of a particular fact. By the section, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in course of a case be shifted from one side to the other. In considering the amount of evidence necessary to shift the burden of proof, regard shall be had by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties, respectively. (See Abdul-Raham v Commissioner of Police (1971) NMLR 87; Arase v Arase (1981) 5 SC 33; Savannah Bank of Nigeria Ltd v Pan Atlantic Shipping and Transport Agencies Ltd (1987) 1 NWLR (Part 49) 212 and Fadlattah v Arewa Textile Ltd (1997) 8 NWLR (Part 518) 546). — Niki Tobi, JSC.

⦿ HOW COURT ARRIVES IN DETERMINING PREPONDERANCE OF EVIDENCE
In determining either the preponderance of evidence or the balance of probabilities in the evidence, the court is involved in some weighing by resorting to the imaginary scale of justice in its evaluation exercise. Accordingly, proof by preponderance of evidence simply means that the evidence adduced by the plaintiff,(in our context the petitioner or appellant) should be put on one side of the imaginary scale mentioned in Mogaji v Odofin (1978) 3 SC 91 and the evidence adduced by the defendant (in our context, all the respondents) put on the other side of that scale and weighed together to see which side preponderates. In arriving at the preponderance of evidence, the Court of Appeal in its capacity as a court (tribunal) of first instance need not search for an exact mathematics figure in the imaginary “weighing machine” because there is in fact and in law no such machine and therefore no figures, talk less of mathematical exactness. On the contrary, the Court of Appeal, in its capacity as a court (tribunal) of first instance, should rely on its judicial and judicious mind to arrive at when the imaginary scale preponderates; and that is the standard, though oscillatory and at times nervous. I will be guided by the above principles on burden and standard of proof when considering Issues 2 and 4 of the appellant’s Brief which I will take anon. — Niki Tobi, JSC.

⦿ INTERPRETATION OF THE WORD “SHALL”
I return to section 146(1) of the Electoral Act. The third word in the section is “shall”. It is an obligatory and mandatory word conveying a command and compulsion. It is peremptory in nature and content. It is a word of authority imposing a duty mostly on an unnamed person. Courts of law mostly interpret the word in the above context of authority and command; bereft of discretion. (See Achineku v Ishagba (1988) 4 NWLR (Part 89) 411; UNTHBM v Nnoli (1994) 8 NWLR (Part 363) 376; Lt.-Gen Bamaiyi (Rtd) v Attorney-General of the Federation (2001) 12 NWLR (Part 727) 468; Ogidi v The State (2005) 5 NWLR (Part 918) 286). Although the word could, at times, convey a permissive meaning, like “may” it is my view that it conveys its usual and ordinary meaning of obligation and command in section 146(1). — Niki Tobi, JSC.

⦿ AN ELECTION CANNOT BE INVALIDATED BY REASON OF NONCOMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT
… an election cannot be invalidated by reason of non-compliance with the provisions of the Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. In other words, a petitioner cannot be heard to say that an election is invalid by reason of non-compliance with the principles of the Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. The words “cannot be heard to say” above are trite legalism that express the notion of estoppel, as a respondent can say in defence, the petitioner cannot be heard to say that the election is invalid. — Niki Tobi, JSC.

⦿ COURT BASES HER DECISION ON FACTS ONLY
The tribunal or court must base its conclusion on the facts before it and nothing but the facts. The tribunal or court cannot introduce facts not before it. The tribunal or court must confine itself to the facts before it. It has no jurisdiction to read into the Record facts not presented by the parties. It cannot also read out of the record facts presented by the parties. It seems I am repeating myself. Repetition is, at times, useful for emphasis and so be it. — Niki Tobi, JSC.

⦿ THE TWO DISTINCT MEANINGS OF BURDEN OF PROOF
This position reminds one of the decision of this Court in Elemo v Omolade (1968) NMLR 359, where it was held that burden of proof has two distinct and frequently confusing meanings. It means: (a) the burden of proof as a matter of law and pleadings; the burden as it has been called of establishing a case whether by preponderance of evidence or beyond reasonable doubt; and (b) the burden of proof in the sense of introducing evidence. As regards the first meaning attached to the term, “burden of proof”, this rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstances whatever. In deciding what party asserts the affirmative, regard must be had to the substance of the issue, and not merely to its grammatical form which later the pleader can frequently vary at will. A negative allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation rests on him. While the burden in the first sense is always stable, the burden of proof in the second sense may shift consistently more as one scale of evidence or the other preponderates. In this sense, the onus probandi rests upon the parties who would fail if no evidence at all or no more evidence is gone into upon the party asserting the affirmative or the party against whom the tribunal at the time the question arises would give judgment if no further evidence were adduced. The test as to who is to begin is determined by asking how judgment would be entered on the pleadings if no evidence at all were given on either side. The party against whom judgment would in that event be given is entitled to begin. — Niki Tobi, JSC.

⦿ JUSTICE OF THE CASE IS DETERMINED BY THE FACTS OF THE CASE
Justice of a case cannot be determined in vacuo but in relation to the facts of the case. Justice so to say, which is not done within the facts of a case is not justifice properly so called but justice in inverted commas and therefore injustice. — Niki Tobi, JSC.

⦿ WHEN THE SUPREME COURT WILL DEPART FROM HIS EARLIER DECISION
As departure from a decision of a court or overruling a decision of a court is a very major judicial exercise, which if done often will ruin or jeopardise the stable rules of judicial precedent, and particularly the rules of stare decisis, courts of law, even the highest court of the land, will not yield to the invitation of counsel just for the asking, in the sense that the case sought to be overruled is not in favour of the party. In asking for a case to be overruled, the party should take into account or consideration, the totality of the decision, meaning that the ratio decidendi must be considered along with the facts of the case. The party should also make a distinction, if any, in the case between a ratio decidendi and an obiter dictum.  If a party’s worry is an obiter dictum, a court of law will not depart from its earlier judgment or overrule it because obiter does not ipso facto have or possess any force in the judgment. And when I say this I am not ignorant of the law that obiter dictum of this Court followed by this Court in certain instances could ripen into a ratio decidendi by frequent adoption. — Niki Tobi, JSC.

⦿ MEANING OF FUNCTUS OFFICIO
Functus officio ordinarily means a task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. (See Black’s Law Dictionary (6ed) page 673.) The latinism means in practice the idea that the specific duties and functions that an officer was legally empowered and charged to perform have now been wholly accomplished and thus the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life becomes dead or moribund after the performance of the duty or function by the authority. In our context, a Judge who has decided a question brought before him is functus officio, and cannot review his decision. (See also Sanusi v Ayoola (1992) 9 NWLR (Part 265) 275; Onwuchekwa v CCB (1991) 5 NWLR (Part 603) 409; Anyaegbunam v Attorney-General of Anambra State (2001) 6 NWLR (Part 710) 532; INEC v Nnaji (2004) 16 NWLR (Part 900) 473). — Niki Tobi, JSC.

⦿ A PARTY IS FREE TO CROSS-EXAMINE ON AN AFFIDAVIT ADMITTED IN EVIDENCE
I am in grave difficulty to agree with the submission of learned Senior Advocate. First, the first leg of his submission implies that an affidavit admitted as an exhibit is not open to cross-examination. This conclusion is drawn from his argument that the difference between an affidavit and a deposition which is a written testimony is that the latter is open to cross-examination. That is not my understanding of the law. A party is free to cross-examine on an affidavit admitted in evidence, particularly where there is a counter-affidavit. Where there is no counter-affidavit, then the deposition will be generally deemed to be correct. In the circumstances a blanket statement such as the one by Counsel, cannot be correct. — Niki Tobi, JSC.

⦿ TAKING A SUBSEQUENT OATH DOES NOT AMEND DEFECTS IN EARLIER DEPOSITION
The third argument is the one on “healing any defect in the swearing of the depositions.  .  .”. This is quite a new one to me. I know of no such adjectival law. Taking the argument further, it means that once a deponent takes oath, it automatically wipes out all the defects provided for in the Evidence Act, particularly in section 83. Although learned Senior Advocate did not specifically mention section 83, I know that is where he is going. Unfortunately, learned Senior Advocate did not cite the law which will perform the automatic medication like iodine to a wound or panadol to headache. There is no such balm to lessen the “pain” in section 83 not to talk of complete healing. Learned Senior Advocate submitted that section 83 anticipates what he called the “later affidavit” and not a procedural deposition which is normally re-sworn at the adoption”. Unfortunately for the appellant, section 83 does not draw any such cleavage or dichotomy. What does learned Senior Advocate mean by the expression “procedural deposition”? Does this infer that there is substantive deposition? Depositions are all matters of procedure as they are adjectival in nature and content. I should finally make the point that learned Senior Advocate did not refer to any authority, either by way of statute or case law to back up or justify his submission. I am not surprised because I do not know any. The submission has not the support either of section 83 of the Evidence Act or paragraph 1(1)(b) of the Practice Directions which provide for written statements on oath of witnesses. Accordingly, question (a) fails. — Niki Tobi, JSC.

⦿ DEPOSITIONS WILL BE REJECTED WHERE NO COMPLIANCE WITH THE EVIDENCE ACT
While some of the depositions accord with the provisions of section 86 of the Evidence Act, the above samples do not. I must say that there are quite a large number of such like depositions. I merely took the above as sample analysis. It is my view that the depositions which complied with section 86 of the Evidence Act cannot save the entire depositions, as they are drowned by those which violated section 87 of the Act. This is because a court of law is not competent to pick depositions in affidavit which are consistent with section 86 of the Evidence Act and ignore those which violate section 87 of the Act. The Court of Appeal was therefore right in rejecting the depositions. (See generally Nneji v Chukwu (1988) 3 NWLR (Part 81) 184; FMG v Sani (No. 2) (1989) 4 NWLR (Part 117) 624; Abu v Alele-Williams (1992) 5 NWLR (Part 241) 340; Nigerian LNG Limited v African Development Insurance Co Limited (1995) 8 NWLR (Part 416) 677; Eze v Okolonji (1997) 7 NWLR (Part 513) 515; Finunion Ltd v MV Briz (1997) 10 NWLR (Part 523) 95). — Niki Tobi, JSC.

⦿ WEIGHT CANNOT BE PLACED ON A DOCUMENT TENDERED BY A PERSON WHO IS NOT IN A POSITION TO ANSWER QUESTIONS ON THE DOCUMENT
Weight can hardly be attached to a document tendered in evidence by a witness who cannot be in a position to answer questions on the document. One such person the law identifies is the one who did not make the document. Such a person is adjudged in the eyes of the law as ignorant of the contents of the document. Although section 91(2) allows him to tender the document, the subsection does not deal with the issue of weight, which is dealt with in section 92. Weight in section 92 means weight of evidence, which is the balance or preponderance of evidence; the inclination of the greater amount of credible evidence offered in a trial to support one side of the issue rather than the other. (See Black’s Law Dictionary (6ed) page 1594). In view of the fact that cross-examination plays a vital role in the determination of the weight to be attached to a document under section 92, and a person who did not make the document is not in a position to answer questions on it. I see the point made by the Court of Appeal. — Niki Tobi, JSC.

Available:  Assad Sabbagh & Naman Sabbagh (Trading As Sabbagh Bros.) v. Bank Of West Africa Ltd. (1966) - SC

⦿ A GROUND OF APPEAL CANNOT BE BASED ON AN OBITER DICTUM
The law is trite that a ground of appeal cannot be based on an obiter dictum.  A ground of appeal is based on a ratio decidendi. An obiter dictum is, as a general principle of law, not binding on courts; a ratio decidendi is. — Niki Tobi, JSC.

⦿ RULES OF COURT DO NOT VEST JURISDICTION IN A COURT OF LAW
There is another aspect of the matter and it is the citation of Order 43 Rule 1 of the High Court (Civil Procedure) Rules of Abia State. While I agree that they are the current Rules, can Rules of Court vest jurisdiction in a court of law? Rules of court do not possess any legal capacity to vest jurisdiction in a court. That is never their function. The function belongs to the Constitution and statutes; not rules of court. I will therefore not examine the content of Order 43 Rule 1 of the High Court (Civil Procedure) Rules of Abia State. — Niki Tobi, JSC.

⦿ NIGERIAN JUDGES AND POLITICIANS MUST NOT BE FOUND MINGLING
I see from Exhibit EP2/34 the need for Nigerian Judges to maintain a very big distance from politics and politicians. Our Constitution forbids any mingling. As Judges, we must obey the Constitution. The two professions do not meet and will never meet at all in our democracy in the discharge of their functions. While politics as a profession is fully and totally based on partiality, most of the time, judgeship as a profession is fully and totally based on impartiality, the opposite of partiality. Bias is the trade mark of politicians. Non-bias is the trade mark of the Judge. That again creates a scenario of superlatives in the realm of opposites. Therefore the expressions, “politician” and “Judge” are opposites, so to say, in their functional contents as above; though not in their ordinary dictionary meaning. Their waters never meet in the same way Rivers Niger and Benue meet at the confluence near Lokoja. If they meet, the victim will be democracy most of the time. And that will be bad for sovereign Nigeria. And so Judges should, on no account, dance to the music played by politicians because that will completely destroy their role as independent umpires in the judicial process. Let no Judge flirt with politicians in the performance of their constitutional adjudicatory functions. When I say this, I must also say that I have nothing against politicians. They are our brothers and sisters in our homes. One can hardly find in any Nigerian community or family without them. There cannot be democracy without them and we need democracy; not despotism, oligarchy and totalitarianism. They are jolly good fellows. The only point I am making is that their professional tools are different from ours and the Nigerian Judge should know this before he finds himself or falls into a mirage where he cannot retrace his steps to administer justice. That type of misfortune can fall on him if the National Judicial Council gets annoyed of his conduct. Ours are not theirs. Theirs are not ours. I will not say more. I will not say less too. So be it. — Niki Tobi, JSC.

⦿ DEMEANOUR OF WITNESSES IN THE EVALUATION OF EVIDENCE
The trial Judge should take into consideration the demeanour of witnesses in the evaluation of evidence. Demeanour, which is outward or overt behaviour or manner of a witness, is the exclusive domain of the trial Judge. It includes all open habits and mannerisms of the witness. These ooze out from the body of the witness spontaneously and not tutored. Some of such body movements include a spontaneous positive or negative reaction to a question; shouting at a particular moment or the opposite action of a pretentious mum conduct; movement of part of the body, particularly the hands and the sudden change in the face arising either from anger or happiness, the latter resulting in either a smile or laughter. Another is a sudden remorse on the part of the witness, usually exhibited by refusal to look at the Judge or Counsel, or others in the court, but a sudden drop of the face in the witness box. There are quite a number of behaviours in the determination of demeanour which cannot be exhausted. I can stop with the above as the major conducts of witnesses. I should complete the picture by saying that as appellate judges are deprived of watching the demeanour of witnesses, trial Judges owe the administration of justice a big duty to arrive at the correct conclusion. Of course appellate Judges are not completely hopeless or helpless. They can watch the evaluation of demeanour by the Judge in the cold records. — Niki Tobi, JSC.

⦿ PRINCIPLES WHICH APPELLATE COURTS SHOULD CONSIDER IN THE EVALUATION OF EVIDENCE
And that takes me to the principles which an Appellate Court should consider in the evaluation of evidence by the trial Judge: 1. Evaluation of trial evidence is the primary responsibility of the trial court and so an Appellate Court cannot interfere just for the asking by an appellant. 2. An Appellate Court will however evaluate the evidence before the court if the trial court fails to do so; and this is from the Record. 3. An Appellate Court will also evaluate the evidence before the court if the trial court failed to evaluate the evidence properly in the sense that the evaluation is perverse. And so, the evaluation of evidence, though the primary responsibility of the trial court, is not the exclusive preserve of that court. It becomes so only where the evaluation is borne out from the evidence before the court. — Niki Tobi, JSC.

⦿ MEANING OF A PERVERSE FINDING
A perverse finding is a wrong, unreasonable or unacceptable finding, having due regard to the evidence before the court. A perverse finding is one not supported by the evidence before the court. It is a finding raised on a wrong assessment of the evidence before the court. A finding of fact based on exaggerated or bloated evidence on the part of the trial court could be perverse. So too finding of fact borne out from addition or subtraction from the evidence before the court. — Niki Tobi, JSC.

⦿ COURTS MUST BE GUIDED BY PLEADINGS
Both courts must be fully guided by the pleadings, which in this case are the petition and the replies. If a witness gives oral evidence on what is not pleaded in either the petition or the reply, the evidence will be of no probative value based on the principle of law that parties are bound by their pleadings. If evidence is not led on a fact pleaded in either the petition or the reply the fact will be deemed to have been abandoned unless the fact was admitted by the adverse party. This is because pleadings have no mouth to talk and need human being with mouth and sense to articulate them in court. This principle of law will not apply where the particular pleading is admitted. — Niki Tobi, JSC.

⦿ ADMISSIBILITY VERSUS FROM PROBATIVE VALUE
There is a clear dichotomy between admissibility of document and placing probative value on it. While admissibility is based on relevance, probative value depends not only on relevance but on proof. An evidence has probative value if it tends to prove an issue. — Niki Tobi, JSC.

⦿ WHAT A PETITIONER WHO CONTESTS THE LEGALITY OF VOTES CAST IN AN ELECTION MUST DO
A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an eye witness. No. They must be eye witnesses too. Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. 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 the recording of the votes; wrong doings and irregularities which affected substantially the result of the election. — Niki Tobi, JSC.

⦿ IF THE RESULT OF AN ELECTION IS NOT AFFECTED SUBSTANTIALLY, THE PETITION WILL FAIL
If there is evidence that despite all the non-compliance with the Electoral Act, the result of the election was not affected substantially, the petition must fail. In other words, the Election Tribunal, must, as a matter of law, dismiss the petition; and that accords with section 146(1) of the Electoral Act. — Niki Tobi, JSC.

⦿ COURTS OF LAW DOES NOT FETCH FOR EVIDENCE FOR PARTIES
The Court of Appeal cannot collect evidence from the market overt; for example from the Balogun market, Lagos; Dugbe market, Ibadan; main market, Jos; Central market, Kaduna; Central market (former Gwari market), Minna; Wuse market, Abuja. On the contrary, the Court of Appeal, has to wait for evidence, as the court did, in the court building duly constituted as a court qua adjudicatory body. Courts of law being legal and sacred institutions do not go on a frolic or on a journey to collect inculpatory or exculpatory evidence. On the contrary, they deal only with evidence before them which is procedurally built on arid legalism. For the avoidance of doubt, I am not saying by this judgment that all was well with the conduct of the Presidential Election conducted in 2007. What I am saying is that there was no evidence before the Court of Appeal to dislodge section 146(1) of the Electoral Act. — Niki Tobi, JSC.

⦿ IRREGULARITIES FOR THE PURPOSE ELECTIONS MUST BE COMPELLING TO VOID THE ELECTION
Nigeria is one vast and huge country made up of so many diversities in terms of tribes, cultures, sociology, anthropology and above all, quite a number of political parties (some large, some small). These diversities, coupled with the usual aggressiveness of Nigerians arising particularly from the do or die behaviour in politics; there must be irregularities. Courts of law must therefore take the irregularities for granted unless they are of such compelling proportion or magnitude as to “affect substantially the result of the election.” This may appear to the ordinary Nigerian mind as a stupid statement but that is the law as provided in section 146(1) of the Electoral Act and there is nothing anybody can do about it, as long as the Legislature keeps it in the Electoral Act. The subsection is like the rock of Gibraltar, solidly standing behind and for a respondent to an election petition. I am not saying that a Presidential Election can never succeed in the light of section 146(1). No. It can if the petitioner discharges the burden the subsection places on him. — Niki Tobi, JSC.

⦿ JUDGES SHOULD NOT BE CASTIGATED FIR PERFORMING THEIR DUTIES
The way politics in this country is played frightens me every dawning day. It is a fight to finish affair. Nobody accepts defeat at the polls. The Judges must be the final bus stop. And when they come to the Judges and the Judges in their professional minds give judgment, they call them all sorts of names. To the party who wins the case, the Judiciary is the best place and real common hope of the common man. To the party who loses, the Judiciary is bad. Even when a party loses a case because of serious blunder of Counsel, it is the Judge who is blamed. Why? While I know as a matter of fact that in every case, the Judge makes an additional enemy, if I use the word unguardedly, I must say that the Judge does not regard the person as his enemy. The Judge who has given judgment in the light of the law, should not be castigated in the way it is done in this country. That is a primitive conduct and I condemn it. It is a conduct that does not help the promotion of the administration of justice. It is rather a conduct that is likely to affect adversely the administration of justice in this country. I feel very strongly that Nigerian Judges should be allowed to perform their judicial functions to the best of their ability. I should also say that no amount of bad name-calling will deter Nigerian Judges from performing their constitutional functions of deciding cases between two or more competing parties. Somebody must be trusted in doing the correct thing. Why not the Nigerian Judge? — Niki Tobi, JSC.

⦿ LAWS ARE MADE TO BE OBEYED
In the interpretation of the above provision, it must be borne in mind that prima facie the Laws are made to be obeyed. All persons, authorities, agencies of government and government must obey the laws of the land. It is the degree of obedience accorded to the laws of the land that distinguishes the state of development in a given country. When laws are not obeyed, anarchy sets in. — Oguntade, JSC.

⦿ INTERPRETATION OF THE WORD SHALL
When the word “shall” is used in a statute it connotes the intendment of the legislator that what is contained therein must be done or complied with. It does not give room for manoeuvre of some sort, or evasiveness. Whatever the provision requires to be done must be done, and it is not at all negotiable. In interpreting the word ‘shall’ as used in enactments, Uwais, CJN in the case of Captain E.C.C. Amadi v Nigerian National Petroleum Corporation (2000) 10 NWLR (Part 674) 76 reiterated the interpretation in earlier authorities thus:– “It is settled that the word ‘shall’ when used in an enactment is capable of bearing many meanings. It may be implying a mandate or direction or giving permission. (See Ifezue v Mbadugha (1984) 1 SCNLR 427 at 456–7). In this present case we are concerned with whether it has been used in a mandatory sense or directory sense. If used in a mandatory sense then the action to be taken must obey or fulfill the mandate exactly; but if used in a directory sense then the action to be taken is to obey or fulfill the directive substantially. See Woodward v Sersons (1875) L.R. 10 CP 733 at page 746; Pope v Clarke (1953), Julius v Lord Bishop of Oxford (1880) 5 A.C. (H.L.) 215 at page 222 and 235 and State v Ilori (1983) 1 SCNL 94 at 110 …” — Mukhtar, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Niki Tobi, JSC.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Chief M.I. Ahamba, SAN.

⦿ FOR THE RESPONDENT
Mr Kanu Agabi, SAN.
Mr Unana Ibom.
Chief Wole Olanipekun.

➥ CASE FACT/HISTORY
The appellant, General Muhammadu Buhari, sought an order in the Court of Appeal, Abuja, sitting as the Presidential Election Tribunal, that the presidential election of 21 April 2007 in which the fourth respondent, Umaru Musa Yar’adua, was elected president, be annulled on the grounds that the fourth respondent had not been qualified to contest the election on account of findings of fraud and embezzlement against him by a Commission of Inquiry set up by the Governor of Abia State, and that the election was invalid by reason of non-compliance with the Electoral Act, 2006 and corrupt practices.

In compliance with the Practice Directions issued by the President of the Court of Appeal, (sitting as the Presidential Election Tribunal), the parties agreed that the depositions of witnesses be taken as adopted and that all documents tendered from the Bar be admitted in evidence.

The Court of Appeal then dismissed the petition for want of evidence in support of the petitioner’s case and declared the fourth respondent the winner of the presidential election held on 21 April 2007 election. The appellant appealed to the Supreme Court on the grounds that the election failed to comply with the provisions of the Electoral Act, 2006 and on account of corrupt practices.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]

I. ARE THE PRACTICE DIRECTIONS MADE BY THE PRESIDENT OF THE COURT ILLEGAL OR UNCONSTITUTIONAL?

RULING: IN RESPONDENT’S FAVOUR.
A. THE PRESIDENT OF THE COURT OF APPEAL HAS THE POWER TO MAKE PRACTICE DIRECTIONS
“Both section 248 of the Constitution and Order 19, rule 7 of the Rules of Court of the Court of Appeal are very clear enabling provisions for the President of the Court of Appeal to make rules. Section 248 vests in the President to make rules regulating the practice and procedure of the Court of Appeal, subject to the provisions of any Act of the National Assembly. There is no Act known to me prohibiting or inhibiting the President of the Court of Appeal to make rules for the court. Not even the Court of Appeal Act, 2004. Rather, the Act recognises the making of rules for the court. This is clear from section 30, the interpretation clause of the Act, which defines “rules of court” as “made or deemed to have been made under this Act.” And so the Practice Directions of 2007 made by the President of the Court of Appeal are either made or deemed to have been made under the Court of Appeal Act, 2004. Order 19, rule 7 is consistent with section 30 of the Court of Appeal Act, 2004 as the Act relates to the definition of Rules of Court. I say this because a Practice Direction declared by the President of the Court of Appeal qualifies as a Rule of the Court. Order 19 rule 7 says so and very clearly too. That is also the decision of this Court in Abubakar v Yar’Adua (2008) 4 NWLR (Part 1078) 455.”

B. APPELLANT MADE USE OF THE PRACTICE DIRECTION AND IS HEREBY ESTOPPED BY CONDUCT FROM COMPLAINING ABOUT THE PRACTICE DIRECTION
“Let me pause here to enumerate some specific areas where the appellant followed the Practice Directions made by the President of the Court of Appeal:

  1. The petition accompanied by statement indicating the number of witnesses to be called, written statements on oath of witnesses and copies of list of every document to be relied upon. This is the content of paragraph 1(1)(a), (b) and (c) of the Practice Directions; what is generally called as front loading for lack of better expression. This is what the appellant did from page 45 of Volume 1 of the Record. As a matter of fact, the appellant in his list of documents at page 45, enumerated 15 documents. There are quite a number of such lists in other volumes of the Record.
  2. The appellant invoked paragraph 3 of the Practice Directions at pages 220 to 223, Volume 1 of the Record in respect of pre-hearing session.
  3. The appellant tendered the evidence of his witnesses from the Bar. This is the procedure provided for in paragraph 4(2) of the Practice Direction. Learned Senior Advocate for the appellant freely availed himself of the direction in paragraph 4(2).
  4. The appellant filed some motions in which he relied on the Practice Directions. At page 234 of Volume 1 of the Record, the heading of the Motion on Notice reads: “Brought Pursuant to Paragraphs 10(2) and 22(1) of the First Schedule to the Electoral Act, 2006; paragraph 5(2) of the Election Tribunal and Court Practice Directions 2007 and under the inherent jurisdiction of the court.” At page 951, Volume III of the Record, the appellant filed a motion “Pursuant to Paragraphs 4(8) and 6(2) of the Election Tribunal and Court Practice Direction, 2007.” The motion was for leave to apply to file additional witnesses’ depositions. And finally at page 1435, Volume IV of the Record, the appellant filed a motion “Pursuant to Paragraphs 6(1), (2), (3) of the Practice Directions, 2007.
Available:  Densy Industries (Nig) Ltd. v. Sunday Uzokwe (1998)

And that takes me to equity, which is morality personified in many areas of our law. Has the appellant done equity on this issue? Has he come with clean hands? Why should he indulge himself in a court process in one breath and then turn around in another breath to question the legality or constitutionality of the process? Will equity allow him to benefit from the court process and at the same time urge the court to discountenance it? Equity with its hands of cleanliness and purity will not allow the appellant to blow hot and cold with the same breadth. This is because there is the possibility of injuring his health, and equity will not like him to injure his health.”

C. THE PRACTICE DIRECTIONS ARE LEGAL
“In the light of the fact that the Practice Directions are not illegal or unconstitutional but rather legal and constitutional. I will not strike out the petition which was conducted materially on them. This court and the Court of Appeal have consistently held that Practice Directions are legal. (See Abubakar v Yar’Adua, (supra); Okereke v Yar’Adua, SC 246/2007 delivered on 19 May 2008 (Unreported) and Haruna v Modibbo (2004) 16 NWLR (Part 900) 487).”

✓ Section 248 of the Constitution of the Federal Republic of Nigeria provides: “Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.”
✓ Order 19 Rule 7 of the Court of Appeal Rules also provides: “The President may at any time, by notice declare a practice of the court as a practice direction, and whenever the declaration was made, such declaration shall be regarded as part of these rules.”
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II. WHO HAS THE BURDEN TO PROVE THAT NON COMPLIANCE DID NOT AFFECT SUBSTANTIALLY THE RESULT OF THE ELECTION?

RULING: IN RESPONDENT’S FAVOUR.
A. THE BURDEN OF PROOF IS ON THE PETITIONER, THEN IT SHIFTS TO THE RESPONDENT
“On the burden of proof, I associate myself with the position taken by the Court of Appeal in Buhari v Obasanjo … In my view, while the burden in the first limb is in the first place unequivocally and totally on the petitioner, the burden on the second limb is shifted to the respondent after the petitioner has satisfied the burden placed on him to prove that the non-compliance substantially affected the result of the election. In other words, the burden on the respondent is not automatic like the day meeting the night. There is a very important requirement and it is this. The respondent is required to satisfy the burden of proof under the second arm only after the petitioner has proved the burden placed on him in the whole subsection. Once the appellant satisfies the burden placed on him by the subsection, the burden of proving the contrary that non-compliance did not affect substantially the result of the election is shifted to the respondent. As the tribunal or court can only come to the conclusion that the election was conducted substantially in accordance with the principles of the Act based on evidence, the party who should give the evidence is the respondent, because he is the one deemed by the subsection to assert that the non-compliance with the principles of the Act did not affect substantially the result of the election. But that should be after the petitioner has proved that the non-compliance affected substantially the result of the election. I realise I sound repetitive. It is intentional.”

“The appellant as petitioner made allegations of non-compliance with the Electoral Act in paragraphs 9B, 9C, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the petition. By the provisions of the Evidence Act that I have referred to above, the case of Elemo v Omolade and the group of cases, it is my view that the first burden of proof based on the preponderance of evidence is on the appellant. This is because he asserted the affirmative and the burden is clearly on him. Putting the position negatively, where he fails to prove the allegations in the above mentioned paragraphs his petition must fail.”

Legislation: Section 146(1) of the electoral Act, 2006.
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III. WHETHER THE DEPOSITIONS SWORN BEFORE THE COUNSEL OF THE APPELLANT IS VALID IN LAW?

RULING: IN RESPONDENT’S FAVOUR.
A. THE DEPOSITIONS WERE NOT ADMITTED UNCONDITIONALLY.
“The first issue is whether the Court of Appeal in adopting the depositions gave an unconditional order, as submitted by learned Senior Advocate for the appellant. With respect, I do not think so. It is clear to me from the above that the Court of Appeal gave a conditional order that the documents were admitted as exhibits “subject to the right of the opposing parties to raise objections to the admission at a later stage.” In the circumstances, learned Senior Advocate is not correct in contending that the documents were admitted unconditionally. There was a clear condition and it is the right of opposing parties to raise objection at the later stage.”

B. ADMITTING THE DOCUMENTS DID NOT MAKE THE JUDGE FUNCTUS OFFICIO BECAUSE THERE WAS A CAVEAT
“The next issue is whether the Court of Appeal was functus officio … A court cannot be functus officio if it gives an anticipatory order, which is conditional to the possible implementation of the order or otherwise as in this case. This is because at the point of fulfillment, the party involved in the anticipatory order will return for a permanent relief. An order of a court made subject to the happening of an event is not one given in total or whole and therefore cannot make the court functus officio.  In this case the objector or objectors were given the right to raise objection on the admissibility of the documents and the Court of Appeal was perfectly in order to rule on their admissibility one way or the other. After all, the latinism of functus officio applies when the whole matter is resolved or dealt with by the court. It will not apply where only a part of it is resolved or dealt with and a part of it is hanging. That part which was hanging in this case was the order “subject to the right of the opposing parties.  .  .” The Judge has to remove the hanger and he is not functus officio to do so. That was what Fabiyi, JCA did and he is right in doing that. The appellant is wrong in castigating him for doing the right thing.”

C. THE DEPOSITIONS WERE SWORN INAPPROPRIATELY BECAUSE THEY WERE SWORN BEFORE COUNSEL INVOLVED
“There is no dispute that Val I. Ikeonu is a legal practitioner. There is also no dispute that the depositions of 18 of the witnesses were sworn to before him. Only one was not sworn before him. The swearing of the depositions of the witnesses before Val l. Ikeonu violates both section 83 of the Evidence Act and section 19 of the Notary Public Act. I therefore agree entirely with the Court of Appeal that all the depositions made before Val I. Ikeonu, which were earlier admitted, were expunged from the record of the court. The argument of learned Senior Advocate for the appellant that the depositions were admitted unconditionally is, with respect, neither here nor there. I have never seen a situation where a court decides that documents are admitted unconditionally.”

Vide: Section 83 of the Evidence Act, provides as follows:– ‘An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner.’”

Section 19 of the Notaries Public Act, Cap. 331 LFN 1996 provides as follows: ‘No Notary shall exercise any of his powers as a notary in any proceedings or matter in which he is interested.’
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IV. WHETHER THE COURT OF APPEAL WAS RIGHT WHEN IT ASSUMED JURISDICTION TO INQUIRE INTO THE PROPRIETY OF EXHIBIT EP2/34 (judicial review of an administrative action – findings of the Commission)?

RULING: IN RESPONDENT’S FAVOUR.
A. THE FINDINGS HAD JUDICIAL ELEMENTS SO THE COURT WAS PROPER IN REVIEWING THE COMMISSION’S FINDING
“I am in some difficulty to agree with learned Senior Advocate for the appellant that the setting up of the Commission was totally and fully an administrative act. I am of the view that it has some content of quasi-judicialism. I should take it further by saying that the findings of the Commission headed by a Judge of the High Court of Abia State are clearly judicial and therefore the appropriate courts of law, including the Court of Appeal, have jurisdiction and competence to inquire into the validity or otherwise of the findings of the Commission; relevantly Exhibit EP2/34.”

B. THE COMMISSION OF INQUIRY SET UP TO TRY THE RESPONDENTS WAS ILLEGAL
“To be more specific, section 4(7) of the Constitution provides that the House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the matters enumerated in (a), (b) and (c). By section 4(7), the Governor of Abia State can only set up a Commission of Inquiry in respect of public officers in Abia State. He has no constitutional competence to set up a Commission of Inquiry to inquire into activities of public servants in any other State. It is in this respect I agree with learned Senior Advocate when he pointed out that the fourth and fifth respondents had never been in the public service of Abia State. He correctly pointed out that at the material time they were Governors of Katsina and Bayelsa States respectively. How come the Commission of Inquiry on them? The purported Commission of Inquiry set up by the Governor of Abia State attempts to destroy the federal arrangement in the Constitution. As the Governor had not the constitutional power to set up the Commission of Inquiry, the findings arising from the Inquiry as in Exhibit EP2/34 are a nullity and I so hold.”

C. THE EP2/4 DID NOT SPECIFICALLY FIND THE RESPONDENT LIABLE OF ANY OFFENCE
“Following the findings of the Commission of Inquiry, Exhibit EP2/34 purportedly indicted the fourth and fifth respondents of “having done their jobs contrary to the Laws, Rules, Principles and Regulations”. Learned Senior Advocate for the appellant urged the Court of Appeal to hold that as the fourth and fifth respondents were indicted pursuant to section 137(1)(i) of the Constitution, they were disqualified from holding public office. Counsel did not repeat the argument in this Court. He merely dealt with the issue of incompetence on the part of the Court of Appeal to inquire into Exhibit EP2/34.
What is the legal content of the words “having done their jobs contrary to the Laws, Rules, Principles and Regulations?” Each of the four words is large in its legal content and therefore not capable of a precise and definite legal meaning. The jurisprudential definition of each of the four words is not easily fathomable; not to talk of all of them put together in Exhibit EP2/34. What laws, rules, principles and regulations is Exhibit EP2/34 referring to? Are they the laws, rules, principles and regulations in Abia State or those of the Federation or better still those of Katsina and Bayelsa States? If they are of any of the States or the Federation mentioned above, what are the specific laws, rules, principles and regulations? The answer is that the alleged wrong doing on the part of the fourth and fifth respondents as having done their jobs contrary to the laws, rules, principles and regulations is vague, nebulous, abstract and not capable of any legal meaning and therefore cannot come within the provision of section 137(1)(i) of the Constitution.”
“I entirely agree with Pats-Acholonu, JSC that an indictment involves an allegation or committal of a crime which necessitates the drafting of a charge. That is the essence of section 137(1)(i) of the Constitution which provides specifically for the offence of embezzlement or fraud. The question is whether the Commission of Inquiry set up by the Governor of Abia State found the fourth and fifth respondents guilty of embezzlement or fraud? There is nothing in the words “having done their job contrary to the Laws, Rules, Principles and Regulations”, to so suggest. In other words, the fourth and fifth respondents were not specifically found guilty of embezzlement and fraud and so Exhibit EP2/34 does not articulate or vindicate section 137(1)(i) of the Constitution, as it is clearly on its own and therefore to no avail to the appellant.”
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V. WHETHER THE COURT OF APPEAL DID NOT PROPERLY EVALUATE THE EVIDENCE BEFORE IT?

RULING: IN RESPONDENT’S FAVOUR.
A. THE DOCUMENTS WERE RIGHTLY EXPUNGED BY THE COURT OF APPEAL
“In my humble view, the documents were rightly expunged for the following reasons: First, the witnesses who tendered them were declared incompetent by the court and so the documents cannot stand in law. This is simple logic. If the pillars supporting a building collapse, the building itself will collapse because there is no more foundation or prop upon which the building will stand. Second, the witnesses who tendered the documents were not the makers and so cannot be cross-examined on the contents of the documents. As cross-examination plays a vital role in the truth-searching process of evidence procured by examination-in-chief it relates to authenticity or veracity of the witness, a court of law is entitled not to place probative value on evidence which does not pass the test of cross-examination. Third, the Court of Appeal rightly, in my view, held that proof of the allegation that result sheets were not delivered to the States and polling units, non counting of votes and announcement of scores of the polling units throughout the country as contained in paragraph 9B(iv)(a) and (b) cannot be established by looking at the documentary exhibits tendered. It can only be established by the direct evidence of those who observed the non-compliance.”
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VI. WHETHER THE APPELLANT PROVED HIS CASE AS DEPOSED TO IN HIS PETITION?

RULING: IN RESPONDENT’S FAVOUR.
A. NECESSARY WITNESSES WERE NOT CALLED TO PROVE APPELLANT’S CASE
“Learned Senior Advocate for the fourth and fifth respondents pointed out that no agent of the petitioner from any of the States in respect of which he made allegations bordering on non-compliance with the Electoral Act, 2006 deposed to any witnesses’ statements. Learned Senior Advocate for the appellant did not provide any answer. An agent is the representative of the candidate in the polling station. He sees all the activities. He hears every talk in the station. He also sees all actions and inactions in the station. Any evidence given by a person who was not present at the polling units or polling booth like the appellant is certainly hearsay. And here, I so regard paragraph 16 of the witness statement or deposition of the appellant. After all, he was not there. He was given the information by the agents. The million naira question is why did these agents not make statements as witnesses? In my view, agents are in the most vantage point to give evidence of wrong doing in a polling unit or polling booth. Can the appellant say in reality that he proved his case without calling any agent?”
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✓ DECISION:
“In sum, this appeal fails and it is dismissed. Accordingly, Alhaji Umaru Musa Yar’Adua and Dr Jonathan Goodluck are the President and Vice President of the Federal Republic of Nigeria, respectively. I make no order as to costs.”

➥ MISCELLANEOUS POINTS
***DISSENTING:

**Oguntade, JSC:
⦿ THE LAW SHOULD NOT MAKE A PETITIONER PROVE THE EFFECT OF THE NONCOMPLIANCE WITH THE ELECTORAL ACT
“A reasoning which saddles a petitioner with the burden of showing non-compliance with the provisions of the Electoral Act and at the same time showing the effect of the alleged non-compliance on the result of election would appear to be unduly favourable and lenient to the respondent who is the perpetrator of the disobedience to the law of the land. This reasoning if sustained in Nigeria, would encourage politicians and INEC to disobey the laws relating to elections without any qualms or remorse since at the end of the day, they are not penalised for such disobedience to the laws. I do hope that the time will come soon when this Court will have the opportunity to review the case law on the point.”

⦿ THE RESPONDENT ADMITTED THAT THE BALLOT PAPERS WERE NOT SERIALISED
“When the above paragraphs of the pleadings of parties upon which the petition was tried are compared and contrasted, it becomes apparent that the respondents did not join issues with the petitioner/appellant on the averment that the ballot papers used for the 21 April 2007 Presidential elections were not serialised and bound in booklets. The contention of the first and second respondents was that the ballot papers were serialised for audit purposes. I do not understand the import of “serialising ballot papers for audit purposes” in answer to the averment that the ballot papers were not serialised as provided under section 45(2) of the Electoral Act. Clearly therefore, the pleading of the first and second respondents on the serialisation of the ballot papers used for the election was evasive. Order 26 rules 13 and 14(1) of the Federal High Court (Civil Procedure) Rules, 2000 made applicable to Election Petitions by Electoral Act, 2006. First Schedule paragraph 50 provides:– “13. It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant shall deal specially with them, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) stating that he does not know whether any given allegation is true or false.  14. When a party denies all allegation of fact he shall not do so evasively, but shall answer the point of substance.” Any averment pleaded by the plaintiff or a petitioner as in this case which is not denied by the defendant or respondent is deemed as admitted and there is no issue on the point to go to trial: Surely, the first and second respondents who organised and supervised the 2007 Presidential elections ought to know whether or not the ballot papers used for the elections were serialised and bound in booklets as required by section 45(2) of the Electoral Act. On the state of pleadings before the tribunal, the first and second respondents had clearly admitted that the ballot papers used were not serialised and bound in booklets as required under section 45(2) Electoral Act. The averment that the ballot papers were serialised for audit purposes is plainly evasive and mischievous. (See Lewis Peat v Akhimian (1976) 7 SC 157 and Okechukwu Adimora v. Nnanyelugo Ajufo & others (1988) 3 NWLR (Part 80) 1 at 11).”

Available:  Musa Abubakar v. E.I. Chuks (SC.184/2003, 14 DEC 2007)

⦿ FAILURE TO SERIALISE THE BALLOT PAPERS IS A SUBSTANTIAL NONCOMPLIANCE
“The inevitable conclusion I arrive at, is that the failure of the first and second respondents to use serialised ballot papers bound in booklets is clearly a non-compliance which shows that the 2007 Presidential Elections were not conducted substantially in accordance with the principles of the Electoral Act, 2006. The court below should have nullified the said elections for this reason. The court below went on to say that the petitioner/appellant did not show that the failure to use serialised ballot papers and have same bound in booklet substantially affected the result of the election. With respect to their Lordships of the court below, they were wrong in their view. They failed to bear in mind that the printing of serialised ballot papers and bound in booklets was an act to be performed before the elections were conducted. The said act therefore was a condition precedent to the holding of the elections. When a provision of the law requires an act to be performed before taking any further steps and that act is not performed, the further steps taken may amount in law to a nullity. The reasoning of the court below would appear to be curious. They proceeded on the basis that the elections conducted with ballot papers unauthorised by law was valid; and then turned round to ask the petitioners/appellants to prove that the same election was invalid for non-compliance. They unwittingly put the cart before the horse. That was a strange way to reason for a court. A court could not first assume that a disputed act was valid and then place on the plaintiff the onus of proving the invalidity of the same act when what was in dispute was the constitutive elements which would lead to a pronouncement of the validity of the Act.”

“Even on the supposition that the burden to prove that the failure to use the ballot papers which did not conform with the law did substantially affect the result of the election was on the petitioner/appellant, it is my firm view that the petitioner/appellant discharged the burden. A ballot paper not in conformity with section 45(2) is prima facie an act of non-compliance. It is therefore an invalid ballot paper. Since it is the same invalid ballot paper that converts later in the process of an election into a vote, the resulting vote must also become an invalid vote. It was never the case of the respondents that the unserialised ballot papers were only used in some of the States in Nigeria. If that were their defence and the court below had found that this was truly the case, that would have placed on the court below the duty to determine what percentage of the votes cast at the election was valid or invalid. If the fourth and fifth respondents would still have won by a majority of the valid votes, the petition was liable to fail. But in this case, all the ballot papers used to cast votes for all the candidates in the election were invalid. The result is that each of the candidates at the Presidential Elections 2007 scored zero or no votes. An invalid ballot paper cannot yield a valid vote. Clearly therefore, the petitioner/appellant in my view succeeded in making the case that the non-compliance with section 45(1) of the elections Act, 2007 substantially affected the result of the election. Let me reiterate very respectfully that the lower court erred by not coming to the conclusion that each of the candidates at the election scored zero as no valid votes were recorded for any of them.”

⦿ THE APPEAL SUCCEEDS
“In the final conclusion, this appeal succeeds. I hold the view that the failure of the first and second respondents to comply with section 45(2) of the Electoral Act which is that ballot papers be serialised and bound in booklets for the purpose of the Presidential elections held on 21 April 2007, is so grave that the said elections ought to be nullified. In coming to this conclusion, I have advised myself fully that all courts in Nigeria have the duty to enforce our laws dealing with elections in order to ensure transparency, credibility and fairness in all elections in Nigeria. I annul the Presidential elections in Nigeria held on 21 April 2007 and order that fresh elections be conducted within 90 days from today.”

**Mukhtar, JSC:
⦿ THE NON SERIALISATION OF THE BALLOT PAPERS MADE THE ELECTION NOT IN SUBSTANTIAL COMPLIANCE
“Perhaps I should ask a pertinent question at this juncture. The question is, if the first and second respondents were working under pressure because of time constraint, why didn’t they include serialisation in the ballot papers when they were placing the order from South Africa? If South Africa was able to print the ballot papers and send them within a span of a very short time of 2 days, then why was the printing of serial numbers on them so difficult or impossible? It is, I believe the same process of the production that will entail the printing of serial numbers. The reason for this omission is not tenable, and does not portray transparency; and fairness, as is the principle of the election. Transparency should have been the watch word of the commission in all the election processes. I agree that, because of the inclusion of another Presidential Candidate in the Presidential race (courtesy of this Court’s judgment) the respondents were faced with certain predicaments, but that is not to say that such fundamental requirements should have been ignored. That exigency, I believe should not have prevented the respondents from complying with this very important provision of section 45(2) (supra). How can an election be described as free and fair when its most important component was fraught with incurable infractions? I cannot and will not be swayed by the excuse of shortage of time. The serialisation could have been done the same time the ballot papers were being printed.”

⦿ THAT THE ELECTION WAS CONDUCTED WITH ILLEGAL BALLOT PAPERS WAS NOT CONTROVERTED
“The answer given by the respondents to the allegation did not adequately controvert or traverse the allegations in paragraph 9(ii)(b) of the Petition, that the election was conducted with illegal ballot papers, the quantity of which could not be verified, and consequently the election was invalid. I rely on all the authorities on reply and admissions which I have referred to above. With this, I am satisfied that the appellant did prove that the non compliance affected substantially the result of the elections as is required by section 146(1) of the Electoral Act (supra). I have deliberately underlined the word result to re-emphasise my stance that ballot papers are the most vital component of an election result, and it is these ballot papers that are collated and counted to determine the winner or loser of an election. When these ballot papers are not legal, then election will to my mind come to naught, for that is the basis of the election and the result. The whole process of election right from the beginning to the end must be seen to be transparently executed, without any ulterior motive whatsoever. In this wise, I resolve issues (3) and (4) in favour of the appellants. The end result of this appeal is that the appeal succeeds in part. I hereby declare that the election purportedly conducted by the first and second respondents on 21 April 2007 for the Presidency of Nigeria is invalid and I hereby set it aside. It is also ordered that the first respondent conducts another election for the office of the President of the Federal Republic of Nigeria.”

**Onnoghen, JSC:
⦿ THE CONDUCTING OF THE ELECTION WITHOUT VALID BALLOT PAPERS MADE THE ELECTION TO BE SUBSTANTIALLY NON-COMPLIANT
“It is failure to comply with subsection (2) of section 45 that the lower court found to constitute substantial non-compliance with the provisions of the Electoral Act. There is no cross appeal on that crucial finding/holding. That being the case, the respondents are deemed to have accepted the said finding as valid and proper and it is settled law that under the circumstance the parties and this Court are bound by the said finding and as such this Court is without vires or jurisdiction to reverse or disagree with same not being a busy body. I therefore agree with the lower court that the non-compliance with the provisions of section 45(2) of the Electoral Act, 2006 constitutes substantial non-compliance but I do not agree that the substantial non-compliance so found is not enough to affect the result of the election because in the first place, you cannot conduct an election properly so called without valid ballot papers. By holding that there was substantial non-compliance with section 45(2) (supra) it tantamounts to holding that the election that was conducted on 21 April 2007 was done without valid ballot papers, which to me, with the greatest respect, amounts to a nullity. The situation being as found by the lower court it follows that there was no election known to law the result of which could have been substantially affected by the non-compliance as the non-compliance in this case is of the nature that invalidated the election. To hold otherwise amounts to giving licence to those who conduct our elections to continue to do whatever they like including creating loopholes for the rigging of our elections thereby continuing to deny our electoral process the credibility it deserves in the comity of democratic nations. How is one to know which ballot papers were sent to Sokoto, Katsina, Ebonyi, etc when the ballot papers were not in booklet form and numbered serially? Even within the particular state where the ballot papers are sent for election how do we know if ballot papers meant for one local government area or ward are not diverted and used in another or even not used at all but stuffed into the ballot boxes and counted as votes. How can we determine a genuine ballot paper from a fake one when we agree that any paper can pass for a ballot paper and be used in an election and assume that such an act of non-compliance does not affect the result of the “election”?”

“Subsection (2) of section 67 clearly shows the importance of serialising and binding of the ballot papers by stating that ballot papers without official marks can only be counted as votes when/if the Returning Officer is satisfied that the said ballot papers came from a book of ballot papers supplied to the Presiding Officer of the polling station in question. How can the Returning Officer be satisfied in the circumstances if the ballot papers, as in this case, are not bound in booklet form nor numbered serially? How can he say with certainty that the ballot papers in question were actually supplied to the Presiding Officer of the particular polling station when the ballot papers, as in this case were neither bound in booklet nor numbered serially. It is with regard to the above considerations that I find myself unable to agree with the majority decision of my learned brothers in this appeal. I therefore hold the considered view that there was sufficient evidence before the lower court with which it would have held that the substantial non-compliance it found as having been proved by the appellant substantially affected the result of the election and allowed the petition on that ground alone. The court not having done so, I hereby hold that the substantial non-compliance proved is of the nature that substantially affected the result of the election and set aside the decision of the lower court on that point.”

➥ REFERENCED (CASE)
⦿ WHAT A PETITIONER MUST DO TO SUCCEED IN AN ELECTION PETITION
Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1, Belgore, JSC, in Interpreting this Provision of section 135(1) of the Electoral Act, 2006, had this to say:– ‘It is manifest that an election by virtue of section 235(1) of the Act shall not be invalidated by mere reason that it was not conducted substantially in accordance with the provisions of the Act. It must be shown clearly by evidence that the non-compliance has affected the result of the election. Election and its victory is like soccer and goals scored. The Petitioner must not only show substantial non compliance but also the figures, i.e. votes that the compliance attracted or omitted. The elementary evidential burden of “the person asserting must prove” has not been derogated from by section 135(1). The Petitioners must not only assert but must satisfy the court that the non compliance has so affected the election results to justify nullification”. (See also Awolowo v Shagari (1979) 6–9 SC 51; Itute v INEC (1999) 4 NWLR (Part 599) 360; Akinfosile v Ijose (1960) SCNLR 447; and Ajadi v Ajibola (2004) 16 NWLR (Part 898) 91).’

⦿ IRREGULARITY MUST SUBSTANTIALLY AFFECT THE ELECTION
Chief Awolowo v Alhaji Shagari (1979) 6–9 SC 37. In his contribution to the majority judgment, Qbaseki, JSC said at pages 82 and 84:– “There is no evidence that the non compliance with section 34A(1)(c)(ii) one of the provisions of Part II has affected the result i.e. but for the non-compliance, the petitioner would have won, to enable the tribunal declare the result invalid. The petitioner pleaded a substantial non-compliance i.e. failure to obtain one-quarter of the votes cast in each of at least two-thirds of all the States in the Federation. But the evidence established this non-compliance in only one State. In other words, the evidence established that the first respondent obtained in each of the 12 States one-quarter or more of the votes cast but did not in the 13th State in Kano State. The third respondent claimed that first respondent received 25% of the votes in 2/3 Kano State. There is no evidence of counting in 2/3, Kano State… In this appeal, the appellant has failed to satisfy the tribunal and this Court that the non-compliance has affected the result of the election or has prevented a majority of votes in his favour with effect, and for that reason the appeal must fail.”

⦿ NONCOMPLIANCE MUST AFFECT THE RESULT OF THE ELECTION
In Akinfosile v Ijose (1960) 5 FSC 192, one of the earliest cases, if not the earliest, it was held that the onus is on the petitioner to prove not only that there was substantial non-compliance with the Electoral Act, but also that such non-compliance affected the result of the election. The decision was followed in the case of Kudu v Aliyu (1992) 3 NWLR (Part 231) 598.

⦿ A PETITIONER IN AN ELECTION PETITION HAS A HEAVY BURDEN
In Ihute v Independent National Electoral Commission (1999) 4 NWLR (Part 599) 360, it was held that in an election petition, when a petitioner makes an allegation of non-compliance with the electoral law as the basis or foundation of his case, he has a heavy burden to show the tribunal by cogent and compelling evidence that the non-compliance is of such a nature as to affect the result of the election. The court followed the decision in Kudu v Aliyu, (supra).  The decision was followed in the case of Haruna v Modibbo (2004) 16 NWLR (Part 900) 487. The court added in Haruna that the petitioner must satisfy the tribunal that he is a victim of the alleged malpractices. The court also relied on Nabature v Mahuta (1992) 0 NWLR (Part 263) 585 and Awolowo v Shagari, (supra).

⦿ PETITIONER IN AN ELECTION MUST PROVE NONCOMPLIANCE FIRST
In Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1, when the case came to the Supreme Court on appeal, the court held that where an allegation of non-compliance with the electoral law is made, the onus lies on the petitioner firstly to establish the non-compliance, and secondly, that it did or could have affected the result of the election. It is after the petitioner has established the foregoing that the onus would shift to the respondent whose election is challenged, to establish that the result was not affected.

⦿ ELECTION SHALL NOT BE INVALIDATED BY MERE REASON THAT IT WAS NOT CONDUCTED SUBSTANTIALLY; IT MUST SHOW THAT IT AFFECTED THE ELECTION RESULT
In Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1, Belgore, JSC, said at page 191:– “It is manifest that an election by virtue of section 135(1) of the Act shall not be invalidated by mere reason it was not conducted substantially in accordance with the provisions of the Act, it must be shown clearly by evidence that the non-substantiality has affected the result of the election. Election and its victory, is like soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figures, i.e. votes, that the compliance attracted or omitted. The elementary evidential burden of ‘The person asserting must prove’ has not been derogated from by s.135(1). The petitioners must not only assert but must satisfy the court that the non-compliance has so affected the election result to justify nullification.”

➥ REFERENCED (OTHERS)

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