ABDULKADIR V. SAADU (2011)

Background

This appeal arose from the Kwara State House of Assembly election conducted on 26 April 2011 for the Ilorin West Central Constituency. Ramat Abdulkadir, sponsored by the Peoples’ Democratic Party, was declared the winner by the Independent National Electoral Commission on 27 April 2011. Rasaq Saadu, the candidate of the Action Congress of Nigeria, and his party challenged the result before the National and State Houses of Assembly Election Petition Tribunal sitting in Ilorin.

The petition alleged that Abdulkadir was not duly elected by the majority of lawful votes and that the election was invalid because of corrupt practices and substantial non-compliance with the Electoral Act. The allegations included manipulation of results, under-age voting, monetary inducement, intimidation, ballot snatching, over-voting and irregularities in several polling units. The petitioners sought a declaration that Saadu was the lawful winner or, alternatively, an order nullifying the election and directing INEC to conduct a fresh election.

The tribunal accepted the petitioners’ case, relied substantially on two INEC documents, exhibits 1 and 20, both purporting to be Form EC8E(i), and concluded that inconsistent dates on the documents rendered the election seemingly inconclusive. It nullified the election and ordered INEC to conduct a fresh election within 90 days. Abdulkadir, the PDP and INEC appealed to the Court of Appeal.

Issues

1. Whether exhibits 1 and 20 contained an official inconsistency sufficient to establish substantial non-compliance with the Electoral Act and justify nullification of the election.
2. Whether the tribunal acted speculatively and occasioned a miscarriage of justice by treating 10 April 2011, appearing in an obscure endorsement on one document, as the date on which the election result was made.
3. Whether allegations of fraud, falsification, concealment and alteration of documents could properly be raised for the first time in final address without having been specifically pleaded and proved.

Ratio Decidendi

The Court of Appeal allowed the appeal and held that an election petitioner bears the initial burden of proving the grounds of the petition with credible and convincing evidence. That burden may shift as evidence is adduced, but it remains the petitioner’s duty to establish the alleged irregularities. Where criminal conduct is directly in issue, the allegation must be proved beyond reasonable doubt under section 135 of the Evidence Act and the relevant provisions of the Electoral Act.

The court reaffirmed that parties are bound by their pleadings. Allegations of fraud, falsification, concealment, alteration or illegality, particularly where particulars are necessary, must be specifically pleaded. Counsel’s final address cannot introduce a new case, and legal submissions or the ipse dixit of counsel cannot substitute for pleadings and evidence. The Court also noted that a party seeking further particulars in an election petition must comply with the time limit in paragraph 17(1) of the First Schedule to the Electoral Act; failure to do so attracts the statutory bar in paragraph 17(2).

Although the evaluation of evidence is primarily the duty of a trial tribunal, an appellate court may interfere where the findings are perverse, unsupported by the evidence, or where the tribunal failed to evaluate material documentary evidence. The Court of Appeal may itself evaluate documentary evidence because it is in as good a position as the tribunal to interpret documents.

Court Findings

The appellate court compared exhibits 1 and 20 and found that their material contents were identical. Both contained the candidates’ names, votes and the official declaration that Abdulkadir had won. The proper endorsement by the returning officer, Dr. Stephen Billy Olajide, stated that the result was declared on 27 April 2011. The obscure stamp, signature and date appearing on exhibit 1 were materially different from the returning officer’s official endorsement and were partly obliterated. The court held that this feature did not establish that the result had been prepared before the election or after the petition was filed.

The court applied the presumption of regularity to the certified INEC documents and held that the petitioners failed to prove that the result was fraudulent or falsified. Form EC8A(i) was recognised as the primary record of votes cast at polling-unit level and the foundation for the subsequent collation forms. However, the tribunal had incorrectly treated alleged discrepancies in a limited number of polling units as affecting all five wards. The petitioners challenged only 14 of the 98 polling units in the constituency, and the evidence showed that many result forms had been signed by the petitioners’ own party agents. Cancellations and alterations were, in relevant instances, initialled by electoral officials.

The tribunal also failed to distinguish between the polling units actually challenged and wards for which no results had been tendered or challenged. Its conclusion that the entire election was inconclusive was therefore speculative and perverse. The alleged anomalies did not demonstrate substantial non-compliance that affected the result of the election.

Conclusion

The Court of Appeal set aside the tribunal’s judgment of 20 October 2011, the nullification of the election and the order for a fresh election. Exhibits 1 and 20 were upheld as valid declarations substantially complying with the Electoral Act. Ramat Abdulkadir was reaffirmed as the duly elected member representing Ilorin West Central Constituency in the Kwara State House of Assembly. Each party was ordered to bear its own costs. Mbaba JCA and Ogbuinya JCA concurred with the lead judgment.

Significance

The decision emphasises that election petitions are governed by strict procedural and evidential requirements. Courts must not nullify an election on the basis of conjecture, unexplained suspicion or an irregularity that has not been shown to have substantially affected the result. It also confirms the importance of precise pleadings, timely requests for particulars, primary election result forms and credible proof of electoral malpractice. While tribunals must carefully scrutinise election materials, they must equally avoid cancelling elections on flimsy grounds, bearing in mind the public expense, disruption and institutional consequences of ordering a fresh poll.