Funmi Branco: Ogun State Gubernatorial Election Petition and the joy of good justices

On Friday 24 November 2023, a special panel of the Court of Appeal delivered judgment in the appeal filed by Ladi Adebutu and PDP against the reelection of Governor Dapo Abiodun as Governor of Ogun State in March 2023. The court dismissed PDP’s appeal and affirmed the judgment of the Election Petition Tribunal which upheld Governor Abiodun’s declaration as Governor. Three Justices heard and judged the appeal – Justice Ikyegh, Justice Mustapha, and Justice Inyang. Ikyegh and Mustapha dismissed the appeal, while Justice Inyang upheld the appeal.

PDP and Adebutu have since gone to town saying that they won the appeal, based on Justice Inyang’s decision. By simple logic, Justice Inyang’s judgment cannot be the judgment to follow – she was only one of three justices. The other two justices dismissed the appeal – their collective decision outweighs hers. This is a simple fact that commonsense dictates, and is the practice of the courts. What Justice Inyang wrote was a dissenting judgment, which Oxford online dictionary defines as “one delivered by a Justice who disagrees with the majority as to the final order resolving the litigants’ dispute.”

Nigeria has many cases in which courts have declared that no matter how forensic or eloquent a dissenting opinion is, it is not the decision of the court on the case. The decision remains the judgment of the majority. If PDP is so sure that it won the appeal stage of the gubernatorial petition against Governor Abiodun, then PDP should not appeal against the decision. PDP and Adebutu should accept the judgment and wait for the supplementary election that Justice Inyang mentioned.

Ordinarily, that should end the matter, but there is more. The dissenting opinion of Justice Inyang is so shocking because it completely departs from what Nigerian lawyers have known to be the law and what the courts have consistently expressed as correct – even up until this year in other petition appeals, like the Presidential Election Petition case.

For instance, an elementary legal principle says that witnesses must not give hearsay evidence. This means that a witness can only testify about things they did or saw. They cannot testify about information that was told to them. PDP’s case in the petition was that the number of voters with PVCs in the polling units where elections were cancelled was more than the number of votes in the margin of lead between Governor Abiodun and Adebutu.

However, the individual witnesses who testified about the number of PVCs collected in their polling units all said that they did not have personal knowledge of the number of PVCs collected. Each person testified that the figures in their witness statements were told to them by third parties on Election Day. So, what witness evidence did Justice Inyang use to come the conclusion that the margin of lead was slimmer than the number of disenfranchised voters?

And even on disenfranchised voters, Nigerian law is clear – the voters who were disenfranchised must come to court themselves, show that they had PVCs to vote and that they attended the polling units to vote on Election Day. While PDP alleged that over 40,000 voters were disenfranchised in Ogun State, they brought only about 40 acclaimed voters to court – a mere 0.10% of the number of witnesses needed. So, again, what did Justice Inyang use?

Further, it is on record that practically all the documents tendered by PDP were dumped on the Tribunal. What this means is that the documents were just brought to court but were not read to the court to show what part is relevant to the case. An example may help here – in a case, one side may tender in evidence a dictionary that has 1,600 pages. The court cannot and should not read the entire 1,600 pages. Even the opposing party need not. The party tendering the dictionary has the duty to identify the specific page and definition in that dictionary that he wants to use. Similarly, if a petitioner tenders the voters register, that register is useless until specific witnesses come and start mentioning the precise entries in the register that are relevant to the petitioner’s case.

In its haste to file an unjustified petition, PDP and Adebutu filed a petition without referring to the documents. The register of voters was tendered in a Ghana-Must-Go bag and after the day of tendering that register (before trial began), those documents never featured in the case again. No witness spoke to the documents. No witnesses read them. No witnesses tied them to PDP’s case. PDP did not even eventually use it – because it was not relevant to the Margin of Lead point that was the heart of PDP’s case. So, whose evidence did Justice Inyang rely on to ascertain the number of voters with PVCs who could not vote on Election Day?

On the number of voters who could not vote on Election Day, only two witnesses set out the total number. These were the star witness (whose evidence was all hearsay) and one forensic analyst whose evidence was thrown out because it came by subpoena. Justice Inyang did not upturn the Tribunal’s conclusion that the star witness merely repeated hearsay evidence. Justice Inyang also did not upturn the rejection of the subpoenaed witness’ evidence. This means that there was no single witness who stated the total number of voters with PVCs who could not vote on Election Day. So, what figures did Justice Inyang use?

Justice Inyang’s justification for her conclusion was that INEC did not call witnesses and so INEC was firstly deemed to have admitted the PDP’s evidence and secondly subject to the legal presumption of withholding evidence. INEC never admitted PDP’s case. How could INEC have done so? INEC filed a robust defence to the petition, denying practically every allegation that PDP and Adebutu made. Not done, INEC cross examined these witnesses and in fact, some of the strongest bases for the Tribunal disbelieving these witnesses were the answers elicited under cross-examination by INEC. Under Nigerian law, if you cross-examine your opponent, you have disputed the case. You can no longer be said to have admitted the case or abandoned your case. Where did Justice Inyang then get the backing for her conclusion that INEC admitted PDP’s case?

Further, it is completely alien to Nigerian law to say that if a party to a court case does not call witnesses, then the presumption of withholding evidence applies. This presumption states that if there is evidence to produce and a party does not produce that evidence, the law will assume that the evidence was not produced because it was unfavourable to the party that withheld it. However, that principle does not quite apply to calling witnesses. The correct position is that a party is not under obligation to present witnesses at all, to present a specific witness, or to present a particular number of witnesses. This is because a party is free to conduct its case as it likes, and because a defending party is only required to call witnesses to answer parts of the opponent’s case that have been proven or credibly substantiated. If your opponent has not been credible, the burden to refute his case does not even shift to you. Even PDP did not argue that the presumption of withholding evidence applied to the petition.

In any event, an elementary legal principle states that even an admitted claim cannot set up declaratory reliefs. Adebutu approached the court to be declared the Governor of Ogun State. A declaratory judgment is a very potent legal tool because it settles the entitlement of parties against the world. As such, under Nigerian law, even if your opponent admits your claim, you must still prove your case, if you want declaratory reliefs. And this makes sense – imagine that Peter Obi sues Atiku before the court and asks for a declaration that Peter Obi was the winner of the February 2023 Presidential Election. Imagine further that Atiku responds to that case by admitting the claim and confirming that indeed, Peter Obi won the election. Should the court then declare Peter Obi as president because his opponent admitted his claim? That would be ridiculous. Because the relief is a declaratory relief, Obi would be compelled to prove it – he would not be allowed to rely on Atiku’s admission.

So, when Justice Inyang expressed her dissenting opinion, she was saying that Adebutu did not need to prove the case. She was saying that Adebutu could obtain a heavy declaratory judgment simply based on admission. She also closed her eyes to the robust defence filed by APC and Governor Abiodun – both of whom did not admit the case. When the founders of the law stated that justice should be blind, they did not require or envisage that judges themselves would be blind to truth and legal principles.

The most startling aspect of Justice Inyang’s dissenting opinion is where she said that:
BVAS record for 92 polling units which contain the total number of registered accredited voters in 92 out of the 99 polling units and which figures correspond with the figures of registered voter in the voters register for each units and accredited voters tendered by the Appellants witnesses.

This conclusion is shocking because it shows that Justice Inyang relied on the number of registered accredited voters to determine apply the Margin of Lead (MoL) principle. Meanwhile, accreditation has nothing to do with MoL because you do not consider accredited voters or registered voters in MoL – you use PVCs collected. In fact, PDP and Adebutu never based their case on registered accredited voters – they relied on their version of number of PVCs collected. The only document that PDP relied upon to show figures of PVCs collected was one Exhibit PT609. That document was ascribed no probative value because of several flaws (it wasn’t headed, it carried no logo, it posed more questions than it answered, it was unsigned, etc.). Justice Inyang did not upturn that finding. That was why she strayed to documents that were unrelated and even unused by the PDP and Adebutu to help them make a case.

In summary, PDP’s case was so bad that the only Justice who expressed a minority opinion in its favour had to allege things that PDP did not allege, argue points PDP did not argue, investigate documents that PDP did not read to the court by itself, and express legal points that PDP itself never expressed knowing them to be wrong. It is a good thing that the correct outweighed the incorrect in that court. It is a good thing that good justice outnumbered bad justice. And it is with this confidence that APC and Governor Abiodun should approach any further proceedings – the courts will not help indolent parties make their case.

Branco contributes this piece through

Funmi Branco: Ogun State Gubernatorial Election Petition and the joy of good justices

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