ADEBUTU V. I.N.E.C. (2024)

Background

This appeal arose from the Ogun State governorship election conducted on 18 March 2023. Adebutu Oladipupo Olatunde was the governorship candidate of the Peoples Democratic Party, while Abiodun Adedapo Oluseun contested for the All Progressives Congress. At the conclusion of the election, the Independent National Electoral Commission returned Abiodun as the elected Governor of Ogun State.

The appellants challenged the election before the Ogun State Governorship Election Petition Tribunal. Their petition alleged, among other matters, substantial non-compliance with the Electoral Act 2022, corrupt practices, failure of the declared winner to obtain the majority of lawful votes, and lack of qualification to contest. A central complaint concerned the cancellation of elections in 99 polling units across 16 Local Government Areas. The appellants argued that the margin of lead between the declared winner and the first appellant was 13,915 votes, whereas 49,066 persons had collected Permanent Voters Cards in the affected polling units. They contended that INEC ought to have declared the election inconclusive and conducted fresh elections in those units under the margin of lead principle.

The appellants called 94 witnesses and tendered numerous electoral documents. The Tribunal dismissed the petition, finding that the evidence did not establish the pleaded allegations. The Court of Appeal, by a majority decision, affirmed that judgment. The appellants then appealed to the Supreme Court.

Issues

1. Whether the appellants proved that INEC breached sections 24(3) and 51(2) and (3) of the Electoral Act 2022 by failing to apply the margin of lead principle after cancelling elections in the 99 polling units.
2. Whether the certified true copies of electoral documents tendered by the appellants manifestly established the alleged non-compliance within the meaning of section 137 of the Electoral Act 2022.
3. Whether the appellants abandoned their allegations of corrupt practices by failing to present competent and admissible evidence in support of the relevant paragraphs of the petition.
4. Whether the appellants established that they obtained the majority of lawful votes cast at the election.

Ratio Decidendi

The Supreme Court unanimously dismissed the appeal and affirmed the decision of the Court of Appeal. The Court held that section 137 of the Electoral Act 2022 is limited in scope. It dispenses with the need for oral evidence only where the originals or certified true copies of documents themselves manifestly disclose the alleged non-compliance. It is not a general exemption from the ordinary burden of proving an election petition. Where the documents require investigation, comparison, interpretation or forensic analysis before the alleged breach can be established, the petitioner must still call competent evidence.

In relation to the margin of lead principle, the appellants had to prove precisely each essential fact on which their argument depended: that elections were cancelled in all 99 pleaded polling units; that the margin of lead was 13,915 votes; and that 49,066 voters had collected PVCs in those affected units. The evidence of the 87 polling agents and voters could, at best, establish events in the polling units where those witnesses were personally present. It did not prove the position in all 99 units. The documentary evidence was similarly incomplete and internally inconsistent. In particular, one report relied upon by the appellants recorded 49,057 PVC collections, rather than the 49,066 pleaded.

The Court further held that a petitioner alleging corrupt practices in relation to an election result bears the burden of providing clear, positive and credible proof. Where the authenticity or correctness of an election result is attacked on the basis of corrupt practices, the allegation must be proved beyond reasonable doubt. Evidence from a polling unit should ordinarily come from a polling agent or another person who was physically present there. The appellants’ witnesses did not provide convincing evidence of the alleged multiple thumb-printing, wrongful ticking of ballot papers or stuffing of ballot boxes. Their case on corrupt practices principally depended on the evidence and forensic report of a witness whose statement and report were filed outside the constitutionally prescribed period.

Court Findings

The Court held that election petitions are sui generis proceedings governed by strict and mandatory timelines. Under section 285(5) of the Constitution and paragraph 4(5) of the First Schedule to the Electoral Act 2022, witness statements on oath and documents intended to support a petition must be filed with the petition or within the period allowed for filing the petition. A tribunal has no jurisdiction to extend that constitutional period for the purpose of introducing additional witnesses or evidence. Consequently, the statements and reports of the relevant witnesses, including the forensic report, were properly expunged even though one statement had been filed pursuant to an order of the Tribunal.

The Supreme Court also reaffirmed that pleadings are not evidence. Facts pleaded but not supported by admissible evidence are treated as abandoned. Once the evidence of the witness on whom the corrupt-practice allegations were based was found incompetent, the appellants were left without evidence capable of proving paragraphs 79 to 82 of the petition.

On the question of lawful votes, the burden rested on the appellants to establish both the unlawfulness of votes credited to the respondents and the resulting entitlement to judgment. Tendering electoral forms without calling witnesses who could explain the alleged irregularities was insufficient. The Court emphasised that a court must decide the dispute on the evidence adduced by the parties and cannot construct a better case for a litigant.

Finally, the Supreme Court declined to interfere with the concurrent factual findings of the Tribunal and the Court of Appeal. Such interference is justified only where there is clear proof of an error of law or fact that has occasioned a miscarriage of justice. No such error was established.

Conclusion

The appeal was dismissed unanimously. The judgment of the Court of Appeal affirming the dismissal of the appellants’ petition was upheld. The parties were ordered to bear their respective costs.

Significance

The decision underscores the demanding evidential and procedural requirements governing Nigerian election petitions. It clarifies that section 137 of the Electoral Act 2022 does not replace oral testimony whenever documents do not, on their face, conclusively reveal the alleged breach. It also confirms that petitioners must prove every factual foundation of a margin-of-lead claim with precision, must present firsthand evidence of polling-unit events, and must comply strictly with the time limit for filing witness statements and supporting materials.