AYODEJI V. AJIBOLA (2011)

Background

This appeal arose from the Kwara South Senatorial District election conducted on 9 April 2011. The first appellant contested the election under the platform of the Action Congress of Nigeria, while Senator Simeon Sule Ajibola contested for the Peoples’ Democratic Party. INEC declared Senator Ajibola the winner with 57,394 votes. The ACN candidate scored 27,660 votes, placing third behind the ACPN candidate, who scored 28,111 votes. The appellants challenged the result before the National and State House of Assembly Election Tribunal sitting in Kwara State.

The petition alleged substantial non-compliance with the Electoral Act, inflation of the respondents’ votes, under-recording of the appellants’ votes, multiple thumb-printing, non-accreditation, voting irregularities, improper computation of results, violence, inducement and a disparity between accredited voters and declared votes. The tribunal dismissed the petition on 24 October 2011, holding that the election was conducted substantially in accordance with the Electoral Act and that the appellants had not proved their allegations. The appellants appealed to the Court of Appeal.

Issues

1. Whether the tribunal was right to refuse the appellants’ motion seeking to introduce the statement on oath of Frederick Israel, said to have been prepared pursuant to an earlier inspection order.
2. Whether the tribunal properly rejected the voters’ registers and Forms EC40A and EC40C tendered by the appellants.
3. Whether the tribunal correctly evaluated the evidence and was justified in dismissing the election petition.

Ratio Decidendi

The Court of Appeal held that a respondent who intends to raise a preliminary objection must comply with Order 10 rule 1 of the Court of Appeal Rules by giving the appellant three clear days’ notice and formally filing the objection, together with the required copies, at the registry. A preliminary objection merely inserted into a respondent’s brief, without separate filing, is incompetent and may be discountenanced. The court further held that under section 241(1)(a) of the 1999 Constitution, no leave is required to appeal against the final decision of a High Court or tribunal sitting at first instance. An interlocutory ruling which forms part of the reasoning for the final decision may therefore be challenged in an appeal against that final decision.

The court affirmed the special character of election petitions. They are sui generis, and their procedure is governed principally by the Electoral Act and its First Schedule. Paragraphs 18 and 47(1) require issues and applications to be dealt with during the pre-hearing session, except where extreme circumstances justify the grant of leave. The appellants’ application, filed after the close of pre-hearing, attempted to introduce what was effectively substantial additional evidence rather than the forensic report authorised by the tribunal’s earlier order. The tribunal was therefore entitled to examine the attached document and determine whether it complied with that order.

The Court of Appeal concluded that Frederick Israel’s 92-page statement was not a forensic handwriting or thumbprint expert report. It was, in substance, further evidence and a new evidential case prepared during the pendency of the petition. The tribunal therefore rightly refused to admit it, and the refusal did not amount to a denial of fair hearing.

Court Findings

The court held that the original voters’ register was the proper document for proving an allegation of non-accreditation, following Kwali v. Dobi. Certified copies could not substitute for the original in the circumstances of this election petition. In addition, documents relied upon by a party must be specifically pleaded and linked through evidence to the particular allegations they are intended to establish. Merely listing documents in a schedule, or tendering them from the Bar without explaining their relevance, does not satisfy this requirement. Under paragraph 41(2) of the First Schedule, documents tendered from the Bar must ordinarily have been consented to at the pre-hearing session. The respondents had not consented to the disputed documents.

The court nevertheless disagreed with the tribunal’s decision to expunge the evidence of PW2, PW3 and PW4 merely because the dates written by the deponents differed from the dates on which the Commissioner for Oaths endorsed the depositions. The legally relevant date was the date of administration of the oath endorsed by the Commissioner, not necessarily the date on which the deponent prepared or signed the document. Sections 4, 115 and 150 of the Evidence Act, together with section 4(2)(c) of the Oaths Act, supported the presumption of regularity. Moreover, the depositions had been adopted and the witnesses cross-examined without objection. The tribunal should not have rejected that evidence without giving the parties an opportunity to address the alleged defect.

Despite this error, the Court of Appeal held that it did not affect the result. The evidence of PW2, PW3 and PW4 was not materially different from that of PW1 and did not establish the extensive allegations pleaded across the senatorial district. The primary burden remained on the appellants to prove the facts they asserted. Allegations imputing criminal conduct, such as multiple voting, voting by proxy, violence and other electoral offences, required proof beyond reasonable doubt under the Evidence Act. The appellants failed to discharge that burden and also failed to prove that any established non-compliance substantially affected the election result as required by section 139(1) of the Electoral Act.

Conclusion

The Court of Appeal unanimously dismissed the appeal and affirmed the tribunal’s dismissal of the petition. Each party was ordered to bear its own costs. The court accepted that the tribunal made an error in its treatment of some witness depositions, but found that the error was immaterial because the surviving evidence still fell far short of proving the petition.

Significance

The decision illustrates the strict evidential and procedural demands of Nigerian election litigation. It confirms that election petitioners must plead their material facts and documents precisely, comply with pre-hearing procedures, properly connect documentary evidence to specific allegations, and prove substantial effect on the result. It also clarifies that certified public documents cannot automatically be tendered from the Bar in an election petition where the Electoral Act requires consent at pre-hearing. At the same time, the decision recognises that an administrative irregularity in an affidavit does not necessarily destroy otherwise adopted and unchallenged evidence. The overriding lesson is that procedural fairness and evidential admissibility must be balanced with the petitioner’s fundamental obligation to establish the pleaded case by credible, legally admissible and sufficiently particularised evidence.