Electoral Act, 2022: The Omo-Agege case as a test hanger, by Scott G. Oko-Arherhe

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Just recently, a special panel of Honourable Justices of the Court of Appeal affirmed an earlier decision of the Delta State Governorship Election Tribunal dismissing a petition filed by Senator Ovie Omo-Agege and the All Progressives Congress (APC) against the declaration of Rt. Honourable Sheriff Oborevwori of the Peoples Democratic Party (PDP) as the winner of the March 18, 2023 Governorship Election conducted by the Independent National Electoral Commission (INEC) in Delta State. In the main, Omo-Agege and APC (petitioners/appellants) contend, as a matter of law and fact, that INEC’s return of Oborevwori as winner violates the spirit and letters of specific innovative provisions of the Electoral Act, 2022. For them, INEC acted brazenly to make a mockery of some major electoral reforms made by the National Assembly when it enacted the extant Act. Amongst others, it is the petitioners/appellants prayer that they be declared the rightful winners of the said governorship election having score the majority of the lawful votes cast and met other constitutional requirements to be so declared. This discussion is on the substance of the petitioners’ case vis-à-vis some innovations contained in the 2022 Act.

A product of sustained patriotic agitations by vigilant stakeholders, the 2022 Act was enacted essentially to enhance INEC’s capacity to conduct free, fair and credible elections and cure its troubling recurrent failings as revealed by the outcomes of a plethora of post-election litigations. Parliament therefore infused the new Act with commonsense innovations and some reforms that are wholly new in Nigeria’s history of electoral lawmaking. These innovations are undoubtedly carefully designed to promote substantial electoral justice through positive changes in the electoral process, law and jurisprudence. The overall intent is to deepen Nigeria’s democracy through credible elections and delivery of substantial, rather than technical, justice by a judiciary that is patriotic, resourceful and bold.

In the Omo-Agege-APC case at hand, some of the innovative provisions of the 2022 Act are of particular relevance. Generally, these provisions are meant to ensure that election riggers are not positively rewarded, but more specifically to attain these narrow objectives:
a. section 51(2) – to disallow overvoting in elections;
b. section 73(2) – to stop election rigging by using only genuine sensitive electoral materials supplied by INEC for the conduct of elections by mandatorily recording their serial numbers or unique identities, quantities and other important information as strictly prescribed by the Commission; and
c. section 137 and paragraph 46(4) of the First Schedule – to prevent undue technicalities that often sustain systemic election rigging by applying simplified evidentiary rules during judicial inquiries to determine the true winners of elections.

Now, let us consider these provisions of the new Act in relation to the mischiefs they are meant to cure or solutions they are meant to bring to the electoral process using the case at hand as a test hanger.

Section 53(2) of the Electoral Act, 2010 (old Act) states that: “Where the votes cast at an election in any polling unit exceeds the number of registered voters in that polling unit, the result of the election for that polling unit shall be declared null and void ….” Following public hearings on the 2022 electoral reforms legislative proposals that birthed the 2022 Act, the National Assembly agreed with the unanimous position of citizens and all stakeholders, including INEC, that ‘number of registered voters’ as the reference point for determining overvoting allowed election riggers to write arbitrary election results to suit themselves up to that number, which is usually far above the number of intending voters actually accredited to vote! As a result, parliament responded with section 51(2) of the extant Act which provides that: “Where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the Presiding officer shall cancel the result of the election in that polling unit.” Thus, ‘number of accredited voters’ is now the commonsense reference point for the determination of overvoting.

In the instant case, Omo-Agege and APC contend under section 51(2) of the new Act that Oborevwori and PDP received over 36,000 votes due to overvoting in about 144 polling units. Quite distinct from the case of Oyetola v. INEC (2023) 11 NWLR (Pt. 1994) 125 where the Supreme Court intervened chiefly because of different or conflicting records of accreditation, all accreditation records tendered by parties in this case are perfectly the same, including the one tendered by INEC – the umpire of the election.

Clearly, the issue of overvoting in this case is quite straightforward and narrow. It does not require undue hair-splitting. It either there was overvoting or there wasn’t. For substantial justice envisaged under section 51(2) of the new Act, all that is required is to simply compare INEC’s accreditation data with the disputed results issued in the 144 polling units of interest. Interestingly, the plain case of the petitioners/appellants in this regard has not been faulted. What then is the rationale for injudiciously kicking this can of injustice worth 36,000 unlawful votes down the road on this vexed, live and plain matter of manifest overvoting?

Next, let us consider section 73(2) of the new Act in relation to this case. This section states that: “An election conducted at a polling unit without the prior recording in the forms prescribed by the Commission of the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials made available by the Commission for the conduct of the election shall be invalid.” Again, the case of the petitioners/appellants here is straightforward, and it is that contrary to this section, quantities and serial numbers of ballot papers, result sheets and other sensitive materials, including BVAS machines, supposedly issued and used by INEC to conduct the election in named and listed 1,333 polling units are unknown as same are not recorded on electoral documents (Forms EC25B, EC40A, 40C) provided by INEC for that mandatory purpose. This fact is manifestly evident on all relevant electoral documents tendered by INEC itself. Indeed, INEC admitted in writing to the court that the documents were not filled as required by the new Act, thus effectively invalidating the election in the polling units concerned. In the exact words of INEC, “the prescribed Forms … do not contain the serial number of the result sheets and BVAS machines” for these units. This speaks volumes! Significantly, Oborevwori and PDP got over 100,000 votes across these polling units – which are “invalid” votes under 73(2) of the new Act. So, again, what is the justice of kicking this can of over 100,000 invalid votes down the road?

As set out from the start, the next issue relates to section 137 of the new Act and paragraph 46(4) of its First Schedule which, as has been submitted, are intended by parliament to simplify rules of evidence during adjudication of electoral disputes by preventing the use of undue technicalities to sustain systemic election rigging.

Section 137 of the 2022 Act 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.” This provision of the Act is not contained in any previous Electoral Act enacted by the National Assembly. It is a thoughtful innovation by the National Assembly to save the valuable time and resources of Election Tribunals in deciding election petitions, and ultimately for the delivery of substantial justice that would give the electorate confidence in the electoral process.

Black’s Law Dictionary (2nd edition) defines ‘manifest’ as what is “clear and requires no proof”. This flows from the Latin maxim, “Manifesta probatione non indigent” which means, “Things manifest do not require proof.” It is the basis of the concept of judicial notice which is confined to adjudicative facts that are readily verifiable from evidence before a court. Therefore, parliament deliberately used the word ‘manifestly’ in section 137 to concretise the point that it only applies where documents speak absolutely clearly to a contentious issue to obviate the need for oral evidence or testimony to prove same.

It seems clear that a party seeking judicial invocation of section 137 of the new Act has three necessary duties. First, he must identify specific provisions of the law that INEC or any other party did not comply with, consistent with his pleadings. Next, he must properly tender pleaded originals or Certified True Copies (CTCs) of documentary evidence that unequivocally discloses or speaks to the pleaded non-compliance or statutory breach. Thirdly and finally, he must show that the documentary evidence pleaded and tendered manifestly discloses the non-compliance or statutory breach in a manner that is clear, unambiguous and visible to the court as it would ordinarily be to an average reasonable and objective person. The petitioners/appellants have dutifully crossed all three hurdles.

This reasoned perspective on the operative import of section 137 of the new Act was elaborately espoused in the 16th October, 2023 incisive decision of the Court of Appeal in Yohanna v. Ishaku (Appeal No. CA/YL/EP/AD/SEN/06/2023) where the erudite and courageous Justice Chioma Nwosu-Iheme (Ph.D), JCA stated thus:

“Section 137 of the Electoral Act 2022 relieves a party the burden of calling oral evidence if the originals or Certified True Copies of the documents tendered manifestly disclose the non-compliance alleged…..

“Let me state with humility that the case of OYETOLA V. INEC… decided by the Apex Court did not in any way diminish the potency of Section 137 of the Electoral Act 2022. The section is statutory, it is also clear and unambiguous. It was introduced to cushion the uphill task expected from the petitioner to also call witnesses even when the non-compliance complained of is glaring, clear, obvious, manifest and stirring the court or the Tribunals on the face.

“To jettison the use of Section 137 even when the petitioner had laboured to produce the originals or Certified True Copies of documents in proof of the non-compliance complained of is to throw away the mischief which Section 137 of the Electoral Act was introduced to cure.

“It will also encourage the Respondent, particularly the Electoral Umpire (INEC) to get away with electoral blunder and thereby making a mockery of our electoral process. It will in turn create the erroneous impression that our judges are not only helpless but also toothless bull dogs.”

Further, paragraph 46(4) of the First Schedule to the new Act mandates that: “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 documents as part of the process of ascribing probative value to the documents or otherwise.” This is clearly different from paragraph 46(4) of the First Schedule to the old Act that simply states that, “Documentary evidence shall be put in and may be read or taken as read by consent,” without more. By adding that “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 documents as part of the process of ascribing probative value to the documents or otherwise” to the extant Act, the National Assembly obviously removed or waived the previous enormous burden of demonstrating the contents of huge volumes of electoral documents in open court and gave parties the right to address the court on their contents. This clear position of the law was recently restated by the Court of Appeal, per Abiru, JCA, in Agbedi v. Olowu (Appeal No. CA/PH/EP/HR/BY/11/2023), delivered on 14th October, 2023.

For the purpose of resolving electoral disputes which are sui generis in nature, section 137 of the new Act and paragraph 46(4) of the First Schedule are more or less a codification of the sound and bold view of Tabai, JSC in the Supreme Court authority of Nagogo v. CPC 2013 ALL FWLR (Pt. 685) 272 (SC) that, “A Court cannot pretend not to see a document before it, particularly when such document is germane to the justiciable resolution of the issue in contention.” By them, the National Assembly clearly and specifically intended that facts which are glaringly and unambiguously manifest on the face of electoral documents should be the sole witnesses or testifiers of what they say, not oral evidence.

So, the petitioners/appellants must be deemed to have complied with the law in full measure having tendered duly certified copies of all relevant electoral documents in support of their case. This is further reinforced by the fact that INEC also tendered these documents, exactly. A careful community reading of section 137 of the new Act and paragraph 46(4) of its First Schedule will undoubtedly reveal parliament’s absolutely clear intendment to institute a new less arduous regime of evidentiary rules in the adjudication of election cases. Parliament clearly went all out to lay the ‘doctrine of dumping’ to rest in electoral disputes by mandating tribunals and courts to thoroughly scrutinize documents duly tendered and admitted in evidence and ascribe appropriate probative value to them, as may be necessary, provided such documents singly and ‘manifestly’ disclose what is complained as per section 137 of the new Act. The Act does not compel any party to adduce oral evidence to support such documentary evidence that bear witness to manifest breaches on their face value. To infer otherwise is to impeach the clear will of parliament and technically repeal section 137 of the new Act and paragraph 146(4) of its First Schedule by judicial fiat. Any of these is a threat to the proper operation of the doctrine of separation of powers by which the National Assembly is solely vested with the legislative powers of the Nigerian Republic pursuant to section 4 of the 1999 Constitution.

Applying section 137 of the new Act and paragraph 146(4) of its First Schedule to sections 51(2) and 73(2) of the new Act must lead to the exclusion of statutorily defined unlawful and invalid votes arising from overvoting and unknown or unrecorded details of sensitive electoral materials, respectively. In this case, the unlawful and invalid votes received by Oborevwori and PDP under sections 51(2) and 73(2) of the new Act alone are in excess of 135,000 votes. Parliament has, by the unambiguous force of the extant Electoral Act, rightly declined to confer electoral victory on a party with such overwhelmingly tainted votes. Besides additional questions regarding over 24,000 inflated and corrupt votes arbitrarily added to the votes of Oborevwori and PDP, this is pretty much the whole case of the petitioners. A case that remains standing like the Rock of Gibraltar as far as sections 51(2), 73(2), 137 and paragraph 46(4) (First Schedule) remain part of the Electoral Act, 2022. May justice be done according to law and with patriotic judicial courage in this matter.

*Dr. Oko-Arherhe is a legal researcher and consultant.

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