Opinion: Can Kano NNPP win appeal against tribunal’s judgment?

By Dr Abdulaziz Bako

Elections are won and lost at the polls, or so we were told. The sacking of the governor of Kano State, Engr. Abba Kabir Yusuf, by the Kano Governorship Election Petition Tribunal, makes it unambiguously clear that we are transitioning into a new era in our quasi-democratic system. Except if something is done to stop it, we are entering an era where judges can simultaneously transmute into party agents, presiding officers, and returning officers, receive some unexamined documents tendered to them from the bar, unilaterally examine the documents in the absence of any of the parties involved in the electoral dispute, and declare whomever they so wish as the winner of the election. We are transitioning into an era where elections will always be won and lost in the courts rather than at the polls.

Discussions regarding the judgment delivered by the Kano governorship election tribunal have largely focused on describing how the judgment clearly defied common sense and logic; however, little attention has been given to the legal ramifications and implications of the tribunal’s judgment. In this article, I will attempt to recollect the events leading to the judgment and give Nigerians the opportunity to understand how our laws were used, misused, abused, or ignored to arrive at the judgment delivered by the tribunal. I will also present my preferred issues for determination at the appeal court.

If you are very familiar with the case, you may skip the next three paragraphs.  On 18th March the Independent National Electoral Commission (INEC) conducted a governorship election in Kano, which was contested by several candidates. Engr. Abba Kabir Yusuf of the New Nigeria Peoples Party (NNPP), who won a total of 1,019,602 votes, was declared as the winner of the election by INEC. Dr. Nasiru Yusuf Gawuna of All Progressives Congress (APC), who scored 890,705 votes, congratulated the newly elected governor and decided not to contest the outcome of the election in the court. However, unsatisfied with the outcome, APC headed to the court to challenge NNPP’s victory. Their major grounds for the petition were that Abba Kabir Yusuf was not a member of the NNPP as at the time of the election, there was substantial non-compliance with the provisions of the Electoral Act, and that the NNPP was not elected by the majority of lawful votes. The question of whether Governor Abba Kabir Yusuf is a member of the NNPP will not be discussed in this article since the court has declared that it has no jurisdiction over the issue.

In an attempt to substantiate their claim that NNPP were not elected by the Majority of lawful votes cast at the election, the APC made a grotesque allegation claiming, in their own words, that “… in the election to the Office of the Governor of Kano held on 18th March 2023 unlawful ballot papers that did not have the signature, stamp, and date of the election were used in casting votes for the 2nd Respondent [NNPP] in all the polling units in the underlisted local governments.” I want us to pay attention to the fact that the APC admits that these unmarked ballots were used to cast votes for the NNPP on the day of the election (18th March 2023).

I have already discussed the issue of whether a ballot paper not bearing a signature, stamp, and date (henceforth described as unmarked ballot papers) may still count as a valid vote in my previous article entitled “Kano tribunal judgment: Probing the (in)validity of ballots not bearing INEC’s official mark.” In this article, I will not delve much into the (in)validity of an unmarked ballot paper. Also, I want to stress that in their petition, they never provided a polling unit by polling unit detail of the number of unmarked ballot papers. They simply provided the total number of affected votes in each local government and stated that 841, 228 votes awarded to the NNPP are invalid because they are unmarked.

Given this wild allegation made by the APC, the next logical question one would ask is, where is the evidence? Well, that’s where things start getting messy. One would think that the APC will present these ballot papers in an open court to allow the INEC and NNPP’s lawyers to cross-examine the evidence, as is consistent with the rules of practice and procedure in Nigerian courts. Well, that did not happen. Instead, the APC tendered certified true copies of over 165,000 ballot papers from the bar, claimed that all of them were unmarked ballot papers and dumped them in the court on the last day of the trial, without giving the NNPP and INEC the opportunity to check the ballots and ascertain that each of those ballot papers are certified true copies of the ballot papers used in the election, they are unmarked, they were used to vote for the NNPP, they were not rejected, and they contributed to the total votes scored by the NNPP. To add insult to injury, the judges accepted the documents, sat in their chambers, and claimed that had gone over and verified all the documents tendered to them from the bar and reached a conclusion that indeed those over 165,000 votes should not have been counted for the NNPP (more on that to come later). Therefore, they deducted 165,616 votes from NNPP’s votes and declared APC as the winner of the election.

The judges may have relied on at least two problematic provisions added to the Electoral Act, 2022, which were not available in the Electoral Act, 2010: Section 137 and paragraph 46(4) of the First Schedule to the Electoral Act, 2022.

Section 137 states that “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.”

Prior to the passing into law of the Electoral Act, 2022, a plethora of court judgments have consistently indicated that documentary evidence must always be joined with an oral testimony of the makers of the document (party agents, for example) before they can be used by the court as facts (see for example Buhari Vs Obasanjo (2005) 13  NWR (Pt. 941) 1 @ 315  – 316  8 – C; MARK V. ABUBAKAR (2009) 2 NWLR (Pt. 1124) 79 at 184-185; Udom Emmanuel Vs Umana (2016) LPELR – 40659  (SC); Wike  Vs Peterside (2016) 7 NWLR (Pt. 1512)  452; Hashidu Vs Goje {2003) 15 NWLR {Pt. 843)  352 B – C; Omoboriowo Vs Ajasin {1984) 1 SCNLR 108; Adewale Vs Olafia {2012) 17 NWLR {Pt. 1330) 478 @ 510 F). However, section 137 has made it unnecessary to call oral witnesses to speak for the validity of a document if the document is a certified true copy and manifestly discloses the alleged non-compliance.

Relatedly, paragraph 46(4) of the First Schedule to the Electoral Act, 2022 stated thus: “Documentary evidence shall be put in and may be read or taken as read by consent, such documentary evidence shall be deemed demonstrated in open court and the parties in the petition shall be entitled to address and urge argument on the content of the document, and the Tribunal or Court shall scrutinize or investigate the content of the documents as part of the process of ascribing probative value to the documents or otherwise.”

This provision of the Electoral Act (paragraph 46(4) of the first schedule) somehow legalized the dumping of documents on the court from the bar and regarding them as if they were read in open court. Additionally, the provisions tacitly gave tribunal judges the warrant to serve as investigators in an election petition trial.

In addition to potentially conflicting with paragraph 41(1) of the first schedule to the Electoral Act, which makes it mandatory that all evidence must be demonstrated in open court by written deposition and oral examination, the permission given to judges to unilaterally examine electoral documents which were not demonstrated before the court by paragraph 46(4) is highly likely to be incongruent with the adversarial justice system we operate in Nigeria, which prohibits judges from assisting any of the parties or serving as an investigator. For example, the Supreme Court (Per Fabiyi JSC), in the case of ACN V. LAMIDO & ORS (2012) LPELR-7825(SC), noted that “It is not the duty of a court or Tribunal to embark upon cloistered justice by making inquiry into the case outside the open court NOT EVEN BY EXAMINATION OF DOCUMENTS WHICH WERE IN EVIDENCE BUT NOT EXAMINED IN THE OPEN COURT. A judge is an adjudicator; not an investigator.”

So, one may ask, can the Supreme Court, for example, overturn or invalidate these provisions of the Electoral Act, thereby declaring the actions of the tribunal Judges illegal? One jurisprudential definition of law holds that “the law is what the court says it is the law.” It is worthy of note that in the spirit of separation of powers, the Supreme Court cannot invalidate a legislative decision (such as the Electoral Act), willy-nilly. However, if the provisions of a law passed by the legislative arm of government contradict the procedures of the practice of the courts, such provision can be invalidated by the courts because of the same principle of separation of powers (the legislature cannot dictate how the judiciary should operate). Also, if certain provisions of the Electoral Act, for example, come into direct conflict with the Constitution or a superior law (such as the Evidence Act, 2011), the court will very likely overturn those provisions.

In the instant case, the provisions of section 137 and paragraph 46(4) of the first schedule to the Electoral Act of 2022 are likely in direct conflict with rules of practice and procedure of our adversarial justice system, which require the demonstration of documents tendered in open Court. These provisions also potentially interfere with the discretion of courts on matters before it, as enshrined in the Nigerian constitution (Section 6(1)(2) and 6(a)).

In the past, the Supreme Court has declared sections of a new Act unconstitutional because it conflicted with the provisions of a superior law. For example in Anene v. State (2022) LPELR-57326 (CA) (Pp. 15-16 paras.B-B), the Court declared that certain provisions of the Administration of Criminal Justice Act 2015 (ACJA) have to give way to the provisions of the Evidence Act (2011) since the Evidence Act (2011) is superior to ACJA (2015). Giving judges the license to unilaterally examine documents in the absence of petitioners and respondents will push our legal system away from the adversarial system we practice toward a cloistered system of justice. Moreover, the Sui Generis nature of election petitions in Nigeria will not allow courts to deliver justice as far as they are expected to investigate documents dumped on them from the bar. The issue of document dumping is fundamental, and the Supreme Court has consistently rejected the practice of dumping documents on the Courts. I believe the Court will continue to reject document dumping even though certain provisions of the Electoral Act (2022) permit such practice.

Of note, these provisions (Section 137 and paragraph 46(4) of the first schedule to the Electoral Act, 2022) have not been tested in the Supreme Court so far. So, it may be risky for the NNPP to heavily rely on the inadmissibility of the documents dumped on the court from the bar by the APC. Rather, the NNPP lawyers should also work hard on proving to the court that even if those documents are admissible in the courts, they are insufficient to warrant deducting votes from its candidate. In the later parts of this article, I will provide detailed arguments to support the fact that the documents submitted by the APC, even if admissible, do not provide evidence that warrants the deduction of 165,616 votes from the NNPP.

Some people have argued that in the Supreme Court case of Oyetola vs. INEC Anors (2023), the Supreme Court has already ruled that documents submitted without oral evidence to back them up are not admissible in the court. I humbly argue otherwise. What happened in Oyetola vs. INEC was that Oyetola sent some documents retrieved from the INEC’s backend server, rather than directly from the BVAS machine, to demonstrate evidence of over-voting. The Supreme Court ruled that information from INEC’s backend server is not similar to information directly retrieved from BVAS machines. So, they ruled that all the documents provided by Oyetola were not relevant. The Supreme Court further held that Oyetola’s oral witnesses were also not qualified to serve as oral witnesses because, among other things, they were not the makers of the documents, and one of the witnesses testified that he has some close ties with Oyetola; therefore, the court ruled that his analyses cannot be deemed to be impartial. Hence, the inadmissibility of Oyetola’s evidence seems to be primarily related to the fact that he brought the wrong documents as evidence, and the failure to admit the accounts of his oral witnesses only served as the icing on the cake. On this note, I want to reiterate that it will be dangerous for the NNPP to rely on an issue that has never been tested in the courts before. No one wants to be a Wistar rat in a battle for the survival of the fittest.

In addition to appealing all the judgments the trial tribunal issued against them, I expect that the NNPP will put these pertinent issues forward for determination by the appeal court. Since the judges served as active investigators in this case, it is only fair if the upper courts allow NNPP to put these issues forward for determination at the appeal court.

Whether the trial tribunal judges were right in admitting copies of 165,616 ballot papers, even though the admissibility of these ballot papers was not demonstrated in open court.
Whether the trial tribunal judges were right in admitting copies of 165,616 ballot papers, even though the detailed polling unit by polling unit breakdown of the ballot papers allegedly affected by lack of stamp, signature, or date has never been provided in the petition. The requirement for providing a polling unit by polling breakdown of evidence of non-compliance has been affirmed in many Supreme Court cases, including Nyesom v. Peterside (2016) 7 NWLR (Part 1512) 452 at 533 parasD-E; Ucha v. Elechi (2012) 13 NWLR (Part 1317) 330 at 359 paras E-H; Buhari Vs Obasanjo (2005) 13 NWR (Pt. 941) 1 @ 315 – 316 8 – C; and INEC v Umana (No. 1) (2016) 12 NWLR (Part 1526) 260.
Whether the tribunal judges were right when they dismissed the argument of presumption of regularity and shifted the burden of proof to INEC, thereby expecting INEC to summon the returning officer to explain why the allegedly unmarked ballots were not rejected. On this issue, I want to argue that INEC does not even need to respond to APC’s claim in an ideal world.

Section 63 (2) of the Electoral Act (2022) has already stated that “If the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the presiding officer of the polling unit in which the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper.”

Assuming that the tribunal judges’ interpretation of an official mark as signature, stamp, and date is correct, claiming that an unmarked ballot paper was counted is not enough. In other words, if someone complains that a ballot paper not bearing the official mark was counted towards another candidate, he is not necessarily claiming that something wrong was done. The petitioner must specifically claim that the unmarked ballot papers were counted for his political opponent despite the fact that they were clearly not from the same book of ballots as the ballot papers furnished to the presiding officer. Then, and only then, can it be said that the petitioner has complained of non-compliance with the Electoral Act. The petitioner will then be required to provide evidence clearly showing that those unmarked ballots were not from the same book of ballots as the ballots furnished to the presiding officer of the polling unit he is complaining about.

Let us give a hypothetical scenario to make this point clearer. Let’s say in a hypothetical city people are prohibited from crossing the street (counting unmarked ballot papers); however, it is mandatory for them to cross the street once the traffic light shows green (i.e. it is mandatory for them to count the unmarked ballots once they ascertain that the unmarked ballots are from the same book of ballots as the ballot papers furnished to the presiding officer). In this case, if Mr. A complains that Mr. B crossed the street (counted unmarked ballot papers), the court cannot simply assume that Mr. B committed a crime or did something wrong. If Mr. A cannot specifically mention what Mr. B did wrong, the court may not even bother asking Mr. B to explain why he crossed the street, otherwise, the court will be inundated with complaints claiming that MR. X, Y,and Z also crossed the street. It will amount to wasting the court’s time if each time someone complains that Mr. H, G, or W, has crossed the street, the court has to call Mr. H to explain that he crossed the street because the traffic light showed green. This argument sounds appealing to me, but I am not sure how it will sound to the legal experts. It will be interesting to see if INEC or NNPP’s lawyers will use this argument in their appeal.

Whether the trial tribunal judges were right in admitting witness accounts of PW32 (APC’s expert witness) even though he never used form EC.40G and EC.40A to ascertain that the ballot papers actually contributed to the total votes scored by the NNPP. The witness acknowledged in his written deposition that his only source of data was the certified true copies of the unmarked ballot papers. But it is not enough to just say that an unmarked ballot paper was used to vote a particular candidate. One also has to prove that those unmarked votes contributed to the total votes scored by the candidate.

In other words, one also must ascertain that those ballot papers did not originate from polling units that have already been canceled. To do this, one must be sure that the serial number on each of the 165,616 ballot papers is within the range of the serial numbers of the ballot papers used in a polling unit that has not already been canceled. One must use a combination of forms EC.40G and EC.40A to make this ascertainment. The expert witness never used any of the said forms, yet the court admitted his testimony as fact and used the same to invalidate the votes of 165,616 Kano citizens, thereby disenfranchising them from exercising their constitutionally guaranteed right to vote.

Whether the trial tribunal judges can reasonably be able to, within a span of 29 days (about 42,000 minutes), perform the task of ascertaining that each of those ballot papers are unmarked, they were used to vote for the NNPP, they were not rejected, and they contributed to the total votes scored by the NNPP (in other words, the ballot papers actually came from a polling unit that has not already been canceled). It is important to note that it may take a normal human being about 3-5 minutes to perform these tasks accurately. But even if we assume that the judges have some superhuman capabilities and that they are able to perform the tasks in 1 minute, and assuming they shared the tasks among themselves to review the documents independently, they can only be able to verify about 42,000 x 3 = 126,000 votes in 29 days (the number of days between the date the ballots were dumped in the court and the day the court delivered its judgment), which is less than the total number of votes they deducted from the NNPP by almost 40,000. This calculation relies on the assumption that throughout those 29 days, the tribunal judges never slept, never rested, and never stopped to eat or respond to the call of nature.

Well, what is clear from the judgment released by the court is that the court never made these considerations. They never indicated that they broke their calculations down to the polling unit level. They continuously indicated that they performed a local government by local government analysis. It is clear that the trial tribunal judges wrongly believed that the mere fact that a ballot paper was used to vote for the NNPP means that the ballot paper must have contributed to the total votes scored by the NNPP. It is my opinion that NNPP’s appeal should require the upper court to make a determination regarding this issue.

Whether the trial tribunal was right when it declared that ballot papers not bearing the presiding officer’s name are invalid. To the best of my knowledge, there is nowhere in the Electoral Act or in any of the INEC’s regulations and guidelines where the INEC instructed presiding officers to write their names on a ballot paper.

Whether the trial tribunal was right when it declared that signed and stamped ballot papers that do not have dates (purely undated ballot papers) are invalid. According to the APC’s “expert” witness report, which the court relied on to arrive at their judgment, there were over 145,000 purely undated ballot papers (ballot papers with stamp and signature, but with no date) that were used to vote for the NNPP during the election on 18th March 2023.

It is trite law that “an undated document is ordinarily invalid and unenforceable but parole evidence is admissible to show when the document was written and from what date when it was intended to operate.” (See Aremu v. Chukwu [2011] LPELR-3862(CA), Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047, Udo & ors v. Essien & ors [2014] LPELR-22684(CA)). The tribunal judges also re-affirmed this trite when they said “It [the undated but signed and stamped ballot papers] may be of probative value [admissible], if the maker [INEC] gives parole evidence of the date it was executed”

This means that the judges agree that if there is credible evidence to prove that the signed and stamped but undated ballot papers were executed on the day of the election, they wouldn’t have discarded over 145,000 votes affected by that issue. However, such evidence was right in front of them, but they knowingly or unknowingly decided not to see it, and I will explain why.

The tribunal judges said they were going to abide by substantial justice, yet they ignored the evidence of the date when those said 145,000 purely undated ballots were executed, even though it was sitting right in front of them. What better evidence does one need to prove that the ballot papers were executed on the date of the election that’s better than the statement and acknowledgment of APC itself (the petitioner)?

APC clearly mentioned in paragraph 92 of their petition that “in the election to the Office of the Governor of Kano held on 18th March 2023 unlawful ballot papers that did not have the signature, stamp, and date of the election were used were used in casting votes for the 2nd respondent [NNPP]…” This means that the APC is not only shying away from claiming that the ballot papers were executed on a date that’s different from the election date, but the APC was actually even affirmatively acknowledging that the ballot papers were executed on March 18th, 2023. The expert witness statement, which the court relied on, also clearly acknowledged the fact that the ballot papers were executed on March 18, 2023. Both the APC and their expert witnesses loudly told the courts the date when the ballot papers were executed. Yet, despite acknowledging that they wouldn’t have deducted the purely undated votes if they were given evidence of the date those votes were executed, the tribunal judges ignored the evidence of the date of execution given to them by the APC and their expert witness and happily deducted 145,000 purely undated ballot papers from the total votes scored by the NNPP, effectively disenfranchising over 145,000 Nigerians who waited in line for hours to exercise their voting rights.

Well, the fact-free rebuke of the NNPP by one of the tribunal judges’ says a lot about the mood of at least a section of the tribunal. The judge was not able to ascertain that Abba Kabir Yusuf, the flagbearer of the NNPP in the governorship election, is a member of the NNPP yet they were able to insinuate that certain individuals who made certain statements that were “widely reported in the media” are not only NNPP members but are officially authorized to speak on behalf of the party and that their statement represents the official position of the party.

Without an iota of evidence, the learned Justice claimed that the NNPP, whom they described with words like “bandits” and “terrorists” had threatened their lives and “threatened to bring unrest and banditry to Kano State”. I want to note that the judge has no proof whatsoever that those who allegedly threaten the judges are members of the NNPP. The same judges who ruled that Abba Kabir Yusuf is not a member of the NNPP are now presuming that people wearing the iconic red cap are not only members of the NNPP but the sole representatives of the party whose actions and statements certainly represent the official position of the party.

It should be noted that the NNPP is a political organization with a robust organizational structure. It has officials saddled with the responsibility of communicating its official position to the public. It is absolutely wrong to assume that statements made by someone wearing a red cap represent the official position of the NNPP. How can the actions of a few individuals who are not even legally proven to be members of the NNPP be generalized to the whole party?

By the statements of this judge, it can be concluded, with a great level of certainty, that the judge cannot be impartial in his judgment. It is my humble opinion that the NJC should take NNPP’s complaints regarding the tribunal judge seriously. The court is supposed to be a place where justice is served and not a place where judges will be given the liberty to settle scores with their imagined adversaries. In an ethical society, the judge would have recused himself from the case because of a potential conflict of interest. His hate and contempt toward the NNPP were as clear as day.

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