MOHAMMED DELE BELGORE, SAN & ANOR. V. ABDULFATAH AHMED & ORS. (2012)

Background

This decision concerned an appeal and cross-appeals arising from the Kwara State governorship election petition tribunal judgment delivered on 2011-11-11. The appellants, who had contested the governorship election, challenged the return of AbdulFatah Ahmed and Peter Kishira as Governor and Deputy Governor of Kwara State. Their petition alleged extensive non-compliance with the Electoral Act, including non-accreditation of voters, misuse and misallocation of ballot papers, wrongful entry of results, violence, inducement, multiple voting, disruption of polling and irregular collation of results. The challenge covered five Local Government Areas and numerous wards and polling units.

The appellants called 65 witnesses and relied substantially on electoral documents obtained from INEC. They argued that, if allegedly unlawful votes were cancelled or deducted, Mohammed Dele Belgore would have secured the highest number of lawful votes and satisfied the constitutional requirement in section 179(2) of the 1999 Constitution. The respondents filed objections challenging the competence of the petition, the adequacy of its particulars, the joinder of parties, the admissibility and certification of documents, and the reliability of the appellants’ expert witnesses. The tribunal dismissed the petition, although it nullified results in certain locations. The appellants appealed, while the respondents filed cross-appeals against portions of the tribunal’s decision.

Issues

1. Whether the respondents’ preliminary objections to the competence of the petition were properly entertained when raised in their replies and final addresses.
2. Whether the general and vague paragraphs of the petition ought to have been discountenanced and whether the respondents were obliged to request further and better particulars.
3. Whether the electoral documents were properly certified and sufficiently connected by oral evidence to the appellants’ pleaded case.
4. Whether the tribunal was justified in rejecting or attaching little weight to the reports and testimony of PW63, PW64 and PW65.
5. Whether the alleged discrepancy of 21,192 ballot papers, non-accreditation and other electoral irregularities had been proved.
6. Whether allegations amounting to criminal conduct required proof beyond reasonable doubt and whether they could be severed from civil allegations of non-compliance.
7. Whether the tribunal was right not to strike out the petition because the registry had under-assessed the filing fees.
8. Whether the tribunal properly nullified the results in Somasun Polling Unit, Adigbongbo/Awe/Orimaro Ward and Shinawu/Tumbuya Ward.

Ratio Decidendi

The Court of Appeal dismissed the main appeal and all cross-appeals. It held that paragraph 12(5) of the First Schedule to the Electoral Act permits a respondent to state an objection in the reply and have it heard together with the substantive petition. The word “heard” is not restricted to a separate oral motion. Where a party adopts a written address containing the objection, the objection is deemed argued. Jurisdictional objections that are not waivable may be raised at any stage, and paragraph 53(2) does not control every jurisdictional objection.

The court further held that a respondent is not under a mandatory duty to seek further or better particulars. An election petitioner must plead material facts with sufficient specificity and cannot rely on vague, omnibus or generic allegations. The petitioner also bears the burden of showing that, after severing allegations of crime from civil allegations of electoral non-compliance, the remaining averments can independently sustain the petition.

Under sections 131–134 of the Evidence Act, the party who asserts a fact bears the burden of proving it. Election results declared by INEC carry a rebuttable presumption of regularity, correctness and authenticity. The person challenging the result must rebut that presumption by credible, cogent and properly linked evidence. Documents, even when admitted, do not establish their contents or significance without admissible evidence explaining their relevance and connecting them to the pleaded case. A tribunal may decline to attach weight to a wrongly admitted document.

Court Findings

The court found that the appellants failed to demonstrate that the tribunal’s findings on the vague pleadings, documentary evidence, alleged ballot-paper discrepancy and expert testimony were perverse. The tribunal had seen and heard PW63, PW64 and PW65 and was entitled to assess their credibility and competence. Their reports contained errors, lacked adequate documentation of the materials examined and did not sufficiently demonstrate the effect of the alleged irregularities on the election. Since the appellants did not successfully challenge the tribunal’s adverse factual findings, those findings remained binding.

The alleged discrepancy of 21,192 ballot papers was not adequately pleaded, quantified in its electoral effect or proved by reliable evidence. The appellants also failed to establish the alleged non-accreditation across the various Local Government Areas and wards. Their written address could not substitute for evidence not properly led at trial.

On the filing-fee cross-appeal, the court held that the petitioners should not suffer because the tribunal registry under-assessed the fees. Having paid the amount assessed by the registry, the petitioners were not blameworthy. The tribunal was therefore entitled to order payment of the shortfall rather than strike out the petition.

The court nevertheless upheld the tribunal’s cancellation of the results in the specified locations. At Somasun Polling Unit, the result form showed that a governorship election was purportedly held on a date when no such election was conducted. In Adigbongbo/Awe/Orimaro Ward, the evidence concerning the identity and signature of the alleged party agent undermined the authenticity of the result. In Shinawu/Tumbuya Ward, a PDP member had acted as an INEC collation officer, contrary to section 29(1) of the Electoral Act. A political-party member could not lawfully perform that electoral function.

Conclusion

The Court of Appeal affirmed the tribunal’s judgment dismissing the petition and confirmed the declaration and return of AbdulFatah Ahmed and Peter Kishira as Governor and Deputy Governor of Kwara State. The main appeal and the cross-appeals were dismissed, with no order as to costs.

Significance

The decision reinforces the demanding evidential burden in Nigerian election petitions. Petitioners must plead precise and material facts, prove each alleged irregularity with credible evidence, establish its effect on the result, and distinguish criminal allegations from civil complaints of non-compliance. It also protects litigants from registry errors concerning filing fees and confirms that electoral results enjoy a rebuttable presumption of validity. At the same time, the ruling makes clear that the presumption cannot save results demonstrably tainted by unlawful collation, fabricated or impossible result forms, or participation by politically affiliated persons in prohibited INEC functions.