HON. RITA ORJI & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2020)

Background

This appeal concerned the election to the House of Representatives for the Ajeromi-Ifelodun Federal Constituency of Lagos State. The election was initially conducted on 23 February 2019. Results from 71 polling units across eight wards were cancelled by officials of the Independent National Electoral Commission (INEC), and the election was declared inconclusive because the margin between the leading candidates was lower than the number of registered voters in the affected polling units. Following a re-run, which was conducted on 27 April 2019, Hon. Kolawole Taiwo Musibau, sponsored by the All Progressives Congress, was declared the winner.

Hon. Rita Orji and the People’s Democratic Party challenged the return before the National and State Houses of Assembly Election Petition Tribunal, Lagos State. They alleged that the cancellation of the original polling-unit results was unlawful and that the re-run election was affected by substantial non-compliance, violence, voter intimidation, multiple thumb-printing, over-voting, improper accreditation and corrupt practices. The Tribunal dismissed the petition on 11 November 2019. The petitioners appealed to the Court of Appeal. The second and third respondents also filed a cross-appeal challenging the competence of the petitioners’ witness statements, which identified witnesses by coded names and numbers.

Issues

1. Whether the Tribunal properly rejected or assigned little probative value to the evidence of the petitioners’ witnesses because their statements were substantially identical and allegedly rehearsed.
2. Whether documents tendered through subpoenaed INEC witnesses, particularly exhibits R3–R10, were inadmissible because they had not been frontloaded or because their makers were not called.
3. Whether the petitioners proved that INEC unlawfully cancelled the results from the 71 polling units.
4. Whether the petitioners established substantial non-compliance with the Electoral Act, INEC Regulations, Guidelines and Manual during the re-run election.
5. Whether the allegations of corrupt practices, disenfranchisement and electoral malpractice were proved to the required standard.
6. Whether the coded witness statements supporting the petition were incompetent under the Oaths Act and the First Schedule to the Electoral Act.

Ratio Decidendi

The Court of Appeal held that a petitioner challenging an election bears the legal and evidential burden of proving the alleged irregularities. Election petitions are civil proceedings, so allegations of non-compliance must generally be established on the balance of probabilities. However, allegations amounting to criminal offences, including corrupt practices, require proof beyond reasonable doubt. A petitioner must prove both the occurrence of the non-compliance or corrupt practice and that it substantially affected the final result, as required by section 139(1) of the Electoral Act, 2010.

The Court further held that the burden in allegations of non-voting, disenfranchisement or misconduct is ordinarily discharged polling unit by polling unit and ward by ward. The petitioner should call credible voters or agents from the affected polling units, tender relevant voters’ cards and registers where appropriate, and demonstrate how the alleged irregularities altered the result. General testimony covering only some polling units cannot invalidate an election conducted across numerous units.

INEC’s Regulations, Guidelines and Manual, issued pursuant to sections 73 and 153 of the Electoral Act, were held to be subsidiary legislation. They validly supplement the Act by providing practical procedures for dealing with circumstances such as violence, intimidation and other disruptions. They were not inconsistent with the Electoral Act merely because the Act did not expressly provide for every situation encountered during an election.

Court Findings

The court found that the petitioners called witnesses from only 32 of the 71 affected polling units. Their evidence was largely identical in wording and structure, despite the witnesses having allegedly observed events at different locations. The court agreed with the Tribunal that the similarity suggested rehearsed or tutored evidence and rendered the testimony unreliable. The evidence also failed to establish, with sufficient specificity, the alleged violence, intimidation, over-voting or absence of voting across all the affected units.

The court upheld the admission of exhibits R3–R10. The documents comprised official reports made by INEC officers in the course of their duties and were admissible under section 52 of the Evidence Act, 2011. The fact that some documents were tendered through subpoenaed witnesses rather than their original makers did not automatically make them hearsay where they were official records made pursuant to statutory duties. The court also held that failure to frontload a document does not necessarily make it inadmissible where the document was specifically pleaded and identified in the respondent’s reply, and where the opposing party was given a fair opportunity to examine it.

Regarding the re-run, the petitioners’ evidence was found to be general and insufficient. The alleged harassment, intimidation and multiple thumb-printing were not linked by cogent evidence to the second or third respondents, nor was there adequate proof that the alleged acts substantially affected the result. Documentary evidence that is merely tendered must also be linked by the tendering party to particular allegations; the court is not required to construct a party’s case by examining documents in the abstract.

On the cross-appeal, the Court held that coded names or identifying marks on witness statements on oath did not render them incompetent. A statement on oath adopted by a witness in court becomes the witness’s evidence-in-chief, and any formal defect may be cured by the oath taken during adoption. Section 4(2)(c) of the Oaths Act also prevents an irregularity in the form of an oath from automatically rendering the resulting evidence inadmissible. The coding practice was accepted as a recognised means of protecting witnesses in election petitions, provided the authorised officer was satisfied as to the declarant’s identity.

Conclusion

The Court of Appeal dismissed both the main appeal and the cross-appeal. It affirmed the Tribunal’s judgment of 11 November 2019 dismissing the petition and upheld the return of Hon. Kolawole Taiwo Musibau. Each party was ordered to bear its own costs.

Significance

The decision reinforces the demanding evidential requirements applicable to election petitions in Nigeria. Petitioners must particularise allegations and prove them at the level of each affected polling unit, rather than rely on broad assertions or uniform witness statements. It also confirms the evidential value of official electoral records, the legal force of INEC’s subsidiary regulations and manuals, and the distinction between admissibility and probative weight. Finally, the judgment clarifies that coded witness statements in election proceedings are not automatically invalid where the witnesses are properly identified to the officer administering the oath and later adopt their statements in open court.