GAMBARI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. (2011)

Background

This appeal arose from the 9 April 2011 election for the Kwara Central Senatorial District. Bilikisu Tinuola Gambari contested the election on the platform of the Congress for Progressive Change, while Dr. Bukola Saraki contested for the Peoples’ Democratic Party. At the conclusion of the poll, Saraki was declared elected with 78,799 votes, while Gambari placed fourth with 5,928 votes. Dissatisfied with the declaration and return, Gambari filed a petition before the Kwara State National and State House of Assembly Election Tribunal.

The petition alleged corrupt practices, substantial non-compliance with the Electoral Act 2010 as amended, manipulation and inflation of results, multiple registration and voting, unlawful allocation of votes, over-voting, altered result forms, and the recording of votes for a party and candidate that allegedly did not contest the election. Gambari sought declarations that the election and Saraki’s return were invalid and, alternatively, an order nullifying the election and directing that a fresh election be conducted. The tribunal dismissed the petition as speculative and unsupported by sufficient evidence. Gambari appealed to the Court of Appeal.

Issues

1. Whether the tribunal wrongly rejected and excluded Forms EC8A, EC8B, EC8C and EC8D, and the legal effect of that rejection.
2. Whether the tribunal properly concluded that the proven complaints were limited in geographical scope and were not substantial enough to justify nullifying the election, particularly having regard to the complaint that the evidence had not been adequately evaluated.

Ratio Decidendi

The Court of Appeal held that an election petition is sui generis. It is a special proceeding governed principally by the Electoral Act and the rules made under it, rather than by ordinary common-law principles applicable to conventional civil actions. Paragraph 41(2) of the First Schedule to the Electoral Act permitted documents to be tendered from the bar only where the parties had consented at the pre-hearing session. Since the parties had expressly declined to consent to the tendering of copies of INEC result forms from the bar, the tribunal was right to reject the first set of documents.

The second set of electoral documents, which the appellant attempted to tender through an INEC witness, was also properly rejected. Under sections 72 and 77(1) of the Electoral Act, official custody of electoral documents lies with the Chief Electoral Commissioner or an officer appointed by him, while the Resident Electoral Commissioner is required to make certified true copies available to a party on demand within seven days. Certification by the secretary of the tribunal did not satisfy the statutory requirement because the secretary was not the officer in official custody of the originals. Certification serves to protect the integrity of public documents and prevent alteration or manipulation of photocopies.

Court Findings

The court reaffirmed that the initial burden in a civil election petition rests on the petitioner under section 137(1) of the Evidence Act. The petitioner must establish the facts asserted and cannot succeed merely by making extensive allegations in the petition. Where allegations are criminal in character, such as corrupt practices, fraud and electoral malpractice, they must be proved beyond reasonable doubt. Other civil allegations may be established on the balance of probabilities, but the petitioner must still produce credible, specific and sufficiently extensive evidence.

Gambari called five witnesses, but the evidence of the relevant witnesses related principally to only three polling units in two wards within Ilorin East Local Government Area. No material evidence was led in respect of the other local government areas comprising the senatorial district. The court therefore treated the unsupported allegations concerning those areas as abandoned. Pleadings without supporting evidence do not prove anything, and a tribunal is not obliged to determine allegations that have not been pursued by evidence.

The Court of Appeal also rejected the complaint that the tribunal had failed to evaluate the evidence. Evaluation is not determined by the length of a judgment or by the number of pages devoted to it. What matters is the substance of the reasoning. The tribunal had considered the material portions of the witnesses’ testimony, including significant answers given during cross-examination. For example, a witness who could not state the number of ballot papers supplied to a polling unit, and who admitted not knowing the contents of his statement on oath, provided weak support for the allegations. The tribunal was entitled to assess the reliability and probative value of that evidence.

With respect to alleged falsification of results, the appellant did not produce the two essential versions—the genuine result and the allegedly falsified result—in a manner capable of demonstrating the alleged alteration. The documentary and oral evidence, even taken together, was grossly inadequate to establish widespread irregularities or to show that any proved irregularity substantially affected the outcome of the election.

Conclusion

The Court of Appeal unanimously dismissed the appeal and affirmed the decision of the election tribunal upholding Dr. Bukola Saraki’s election and return as Senator for Kwara Central. The parties were ordered to bear their own costs.

Significance

The decision emphasizes strict procedural compliance in election litigation. Electoral documents must be properly pleaded or otherwise legitimately introduced, tendering from the bar requires the prescribed consent, and certified copies must be authenticated by the legally authorised electoral custodian. It also confirms that a petitioner challenging an election must connect each allegation to credible evidence, demonstrate its geographical and numerical scope, and prove that the alleged non-compliance substantially affected the result. Broad accusations, unsupported polling-unit claims and defective copies of public documents will not justify the extraordinary remedy of nullifying an election.