Paragraph 46
Hearing in a Petition(1) When a petition comes up for hearing and neither party appears, the Tribunal or Court shall, unless there are good reasons to the contrary, strike out the petition and no application shall be brought or entertained to relist it.
(2) When a petition comes up for hearing, if the petitioner appears and the respondent does not appear the petitioner may prove his petition so far as the burden of proof lies upon him and the Tribunal or Court shall enter a final judgment in the petition.
(3) When a petition comes up for hearing, if the respondent appears and the petitioner does not appear, the respondent shall be entitled to final judgment dismissing the petition.
(4) 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.
(5) A party shall close his case when he has concluded his evidence and either the petitioner or respondent may make oral application to have the case closed.
(6) Notwithstanding the provision of subparagraph (5), the Tribunal or Court may suo-motu where it considers that either party fails to conclude its case within a reasonable time, close that party’s case.
(7) The Secretary shall take charge of every document or object put in as exhibit during the hearing of a petition and shall mark or label every exhibit with a letter or letters indicating the party by whom the exhibit is put in (or where more convenient the witness by whom the exhibit is proved) and with a number so that all the exhibits put in by a party (or proved by a witness) are numbered in one consecutive series.
(8) The Secretary shall cause a list of all the exhibits in the petition to be made which when completed shall form part of the record of the proceedings.
(9) For the purpose of subparagraph (8), a bundle of documents may be treated and counted as one exhibit.
(10) When the party beginning has concluded his evidence, if the other party does not intend to call evidence, the party beginning shall within 10 days after close of evidence file a written address. Upon being served with the written address, the other party shall within seven days file his own written address.
(11) Where the other party calls evidence, he shall within 10 days after the close of its evidence file a written address.
(12) Upon being served with other party’s written address the party beginning shall within seven days file his written address.
(13) The party who files the first address shall have a right of reply on points of law only and the reply shall be filed within five days after service of the other party’s address.
i. This paragraph seeks to provide an established procedure for the hearing of an election Petition after the close of pre-hearing session.
ii. It empowers the Tribunal or Court to strike out a Petition whenever same comes up for hearing and any of the Parties does not appear. Note that no application for relisting can be brought or heard by the Tribunal or Court for a Petition that has been struck out under the circumstance. Where the Respondent fails to appear, the Petitioner can go ahead to prove his Petition and where the Petitioner fails to appear, the Respondent is entitled to final Judgment dismissing the Petition.
iii. The Paragraph allow Parties to close their respective cases upon conclusion of their respective evidence but where any of the Parties fails to apply to close his case at the conclusion of his evidence, the Tribunal is empowered to close the case of such a party.
iv. Subparagraph (4) is a new provision in the 2022 Act. It allows parties to address and argue on the content of a document put in as evidence, adding that 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.
v. This provision seems to be aimed at simplifying the petitions process and addressing what is referred to as “dumping” in courts i.e., putting a document in evidence as exhibit without the evidence of witnesses to link it with the specific part of the case in support of which the document was put in evidence by a party.
vi.
The current position of the law is that a Court or Tribunal would only ascribe probative
value to documents that are properly demonstrated before it, by parties laying the nexus
between
such documents to the evidence of their witnesses and by scrupulously examining the
documents to
see whether they have the content of probative evidence.
Read Dame Pauline K. Tallen & ORS V. David Jonah Jang & Ors (2011) LPELR-9231(CA)
vii. Therefore, the new provision allows counsel and litigants in election petition matters to tender documents and argue them without calling witnesses. It further empowers Election Tribunal Judges or Justices to examine and attach probative value to such document or otherwise. This provision seems to be a departure from the principle earlier stated and contained in many judicial decisions. Example is Omisore v Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 323 , where the court held that “Documentary Evidence no matter its reliance, cannot on its own speak for itself without the aid of an explanation, relating its existence. The validity and reliance of documents to admitted facts or evidence is when it is done in Open Court and it is not a matter of counsel’s address.”
viii.
Note that at close of the case of all parties, written addresses are to be filed beginning
with the party who last called evidence.
Read Obanikoro & Anor v. Yishawu & Ors (2015) LPELR-40884(CA)
On failure of the Petitioner to appear for hearing.
GUDAJI MUHAMMAD KAZAURE & 1 OR. v. MUKHTAR MUHAMMAD & 2 ORS. (EPT/JG/HR/02/2023) (Unreported) Per A. A Okeke
In this case, the Court invoked its powers under Paragraph 46 (3) and granted the Respondents’ relief on their application brought pursuant to
the petitioner’s failure to appear for hearing on the slated date. The petition was deemed to be abandoned and accordingly dismissed with
cost awarded to the Respondents.
On the need to call evidence to demonstrate documents tendered in support of alleged non-compliance with the Electoral Act.
DAHIRU YUSUF LIMAN V SOLOMON & 3 ORS. (APPEAL NO:CA/K/EP/SHA/KD/41/2023)
The Court of Appeal held that the effect of section 46 (4) of the First Schedule of the Electoral Act is that a Court/Tribunal is at liberty to personally examine and evaluate a document in order to do justice to a case especially if there are several documents from which a court or tribunal will need to draw analogy and conclusion of a case from. But that section 137 of the Electoral Act and Paragraph 46(4) of the First Schedule, would not apply in circumstances that raise the allegation of commission of a crime as such cannot be manifest upon examination of electoral documents without admissible evidence to establish the allegation beyond reasonable doubt.
ONUOHA CHIKWEM CHIJIOKE & LP V. INEC, ONUOHA MIRIAM ODINAKA & APC (CA/ABJ/EP/HR/IM/48/2023) (Unreported)
The Court of Appeal said it was bold for the Apellants to stake the fortunes of their appeal on the provisions of section 137
(and paragraph 46(4) of the First Schedule to the Electoral Act), which is not a magic wand to herald the success of an election
petition that has not been fed with relevant, credible and sufficient information to establish complaints of non-compliance.
MRS VICTORIA DUBBUMMA ONWUBIKO & LABOUR PARTY v. INEC, PDP & ERUNDU UCHENNA CA/OW/EP/SHA/AB/33/2023 ERONDU (Unreported) Per Aliyu, JCA @ Page 36
In this case where counsel of the Appellants tendered from the Bar forms EC84(1) - polling unit results, forms EC8B(1), Forms EC8E (1), voters registers for
some wards and other documents which he was not the maker of; the Court held that the documents did not on their own disclose any of the infractions alleged.
The Learned Justice went ahead to emphasise the need for them to call oral evidence to demonstrate the alleged infractions by holding thus;
“...the Tribunal correctly held that the provisions of S.137 of the Electoral Act, 2022 relate only to ground of petition of non-compliance with the
Electoral Act and that ground is not the ground of this petition. Similarly, the Tribunal’s holding regarding the application of Paragraph 46 (4) of the
First Schedule to the Electoral Act, 2022 that its provisions were meant to broaden and ease presentation of petitions (but) has not altered the
substantive Evidence Act.”
INEC V. ABDULKADIR AHMED ZAKKA, APC, ALIYU ILYASU & PDP (CA/K/EP/HR/KT/33/2023)(Unreported)
The Court of Appeal held that the Tribunal erred in law when they held that the provisions of S.137 of the Electoral Act 2022 and Para. 46(4)
First Schedule has dispensed with the need for the 1st and 2nd Respondents to call witnesses as it relates to over voting and non-compliance.
See also: NDANENU TONY AMAECHI, APC V. INEC, PDP & OSAMUTA EMEKA PRINCE (CA/AS/EP/SHA/DL/50/2023)(Unreported)
The Court was of the opinion that S. 137 of the Electoral Act and Paragraph 46(4) of the 1st Schedule to the Electoral Act, 2022, did not
relieve the Appellants of their duty to adduce evidence and speak to the documents filed from eye-witnesses who would be able to explain the
alleged electoral malfeasance except the non-compliance is manifestly clear on the face of the document.
On paragraph 46(4) not applying to criminal allegations.
APC V. KATUKA SOLOMON, PDP, DAHIRU LIMAN & INEC (APPEAL NO: CA/K/EP/SHA/KD/42/2023)
The Court of Appeal held that Paragraph 46(4) and section 137 of the Electoral Act 2022 cannot be invoked to settle criminal allegations.
