Today, I asked a learned colleague: if INEC claimed that a glitch prevented them from transmitting polling unit results to the IReV, what prevented them from “transmitting” (presenting) those results to the PEPT? Wouldn’t the average reasonable man have answered “okay, we’ll talk about that later. But for now, where are the results? Show them to the petitioners. Let’s start from there”.
How come that, despite our training in the law and our calling as learned and wise, we fail to ask fundamental questions, which an average village elder sitting in judgment would ordinarily ask as a reasonable person?
This again calls to mind the famous dictum of John Powell, which is captured in the famous case of Coggs v. Bernard, 2 Lord Raymond Reports, p. 911, where the foundation of bailment as a distinct cause of action was laid:
“Let us consider the reason of the case. For nothing is law that is not reason.”
The law is not hocus pocus. It is not some occult mystical practice the deciphering of which is only known to the judges. The law is reason, the same reason that has held human societies together since man learnt to dwell in organized communities. Why do we fail to ask the basic questions that reasonable men would ask in adjudication? Is it a failure of mind or of heart or both?
An oft repeated phrase in election petition litigation is sui generis. Lawyers talk of it like it were some mystery that makes election petition adjudication incomprehensible to the society that the justice delivered is meant to serve. “Sui generis” means “in a class of its own”. What puts election petition litigation in a class of its own? Some say that it is because it has its own rules. However, those rules in most cases adopt or incorporate the Federal High Court Civil Procedure Rules. 90% of the arguments of lawyers in election petitions are based on the ordinary civil procedure rules. Some others talk of the strict time limits and urgency. Again, there is provision in the civil procedure rules for the court to accelerate proceedings. Time limits cannot be the fundamental reason why election petitions are sui generis. We did not have the present time limits a few elections ago.
What I believe makes the difference is that election petitions, though largely civil in nature, also have a feature of criminal proceedings, which is that the burden on the petitioner to prove his case never shifts, as it is with the prosecution in criminal proceedings. That is the reason that I find the talk of the burden of proof shifting or not shifting in election petitions truly perplexing. The burden never shifts, wherever it arises appropriately in election petitions. However, unlike in criminal proceedings, the burden is discharged on a balance of probabilities, like is done in civil proceedings. This is where the dynamics change. It means that in the discharge of that burden, the petitioner can call in aid admissions by his opponent and presumptions of the law, including the presumption against withholding evidence. It means that depending on the facts and the applicable legal rules, it can be discharged on the most minimal of evidence. I refrain from saying more on this due to ongoing litigation.
However, the most fundamental reason why election petitions are sui generis is the one that is almost never mentioned and never applied. That is that election petitions are not just adversarial, they are also inquisitorial. I would say that they are fundamentally inquisitorial in nature. The election petition tribunal sits not only as a court but also as an investigator. The parties before the court are not just the petitioner and the respondent. There is a third party, which is the voter. The tribunal is the counsel for the voter. The tribunal is given inquisitorial power to go beyond the evidence tendered by the parties to seek the truth for the sake of the otherwise hapless voter. Section 42 of the Electoral Act, 2023 provides thus:
42.—(1) On the hearing of an election petition, the Tribunal or Court may summon a person as a witness
who appears to the Tribunal or Court to have been concerned in the election.
(2) The Tribunal or Court may examine a witness so summoned or any other person in the Tribunal or
Court although the witness or person is not called and examined by a party to the election petition, and
thereafter he may be cross-examined by or on behalf of the petitioner and the respondent
This is truly and fundamentally what makes election petitions sui generis yet it is almost never mentioned. The election petition tribunal could and should have ordered INEC to appear before it with the votes from the polling units that it claimed to have received physically and collated without the aid of the IReV, contrary to the primary requirement of the law, for reason of a claimed glitch. We would have avoided this situation where the votes of Nigerians on the basis of which INEC claimed to have declared results remains a mystery even to the court that affirmed the results. We have been told that the petitioners could not prove that BAT did not win the election but who can prove that he won? Did the court see any evidence that he won the election? INEC failed to produce, despite a subpoena, even the result sheet with which they declared the results that could have shown, at the very least, basic computations by which the results were arrived at. Is it not a shame that we affirmed results from votes of Nigerians that we did not see?
So, we return to where we started from – why do we fail in our election adjudicatory processes to ask questions that the ordinary reasonable man would ask?
Published by Chuks Nwachuku
