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INEC RESULTS VIEWING PORTAL IS NOT A COLLATION SYSTEM

Dictum

From the above functions of the BVAS, it is clear to me that, apart from using the BVAS to scan the physical copy of the polling unit result and upload same to the Result Viewing Portal (iReV), there is nothing in the Regulations to show that the BVAS was meant to be used to electronically transmit or transfer the results of the Polling Unit direct to the collation system. It should be noted that INEC Results Viewing Portal (IReV) is not a collation system. The Supreme Court in OYETOLA V INEC (2023) LPELR-60392(SC) has explained the difference between the Collation System and the IReV. In that case, Agim, JSC held as follows: “As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day.”

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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VOTERS REGISTER CANNOT BE REPLACED BY CARD READER TO PROVE OVERVOTING

This court in a number of recent decisions has commended the introduction of the card reader in the 2015 elections by INEC. The court has noted however, that its function is solely to authenticate the owner of a voter’s card and to prevent multi-voting by a voter and cannot replace the voters register or statement of results in appropriate forms. See Shinkafi v. Yari ; Okereke v. Umahi (unreported) SC.1004/ 2015 delivered on 5/2/2016 at pages 31 – 34.

— Kekere-Ekun, JSC. Nyesom v. Peterside (SC.1002/2015 (REASONS), 12 Feb 2016)

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HISTORY OF THE EVIDENTIAL BURDEN OF NON-COMPLIANCE IN OUR ELECTORAL LAWS

This ground of non-compliance to the Electoral Act has been in all our Electoral Laws even from when we had parliamentary system of government. The Courts have over the years shed a lot of light on the requirement of the law in proving the allegation of non-compliance. A short chronicle of the decisions of our Courts will throw more light on the evidential burden of proving non-compliance. In BASSEY V. YOUNG (1963) LPELR-15465 (SC), BRETT JSC in the then Federal Supreme Court held as follows: “…Akinfosile v. ljose (1960) 5 F.S.C. 192, where the Court held that a petitioner who alleges in his petition a particular non compliance and avers in his prayer that the non-compliance was substantial must so satisfy the Court. If there should be any inconsistency between the two decisions, it is the decision of this Court that binds us, and it would appear to me that we are bound by the authority of Akinfosile v. ljose to hold that the petitioner must show both that irregularities took place and that they might have affected the result of the election.” In AWOLOWO V. SHAGARI & ORS (1979) LPELR-653 (SC), the Supreme Court of Nigeria in the 1979 election contest held per Obaseki JSC as follows: “Once a petitioner alleges a particular non-compliance and averred in his prayer that it was substantial it is his duty so to satisfy the Court or Tribunal having cognisance of the question. See AKINFOSILE v. IJOSE 5 FSC 92 AT 99 (a case dealing with Regulation 7 of the Elections (House of Representatives) Regulations 1958 which is in pari materia with Section 111 of the Electoral Decree 1977 as ………..to vitiate an election, the non-compliance must be proved to have affected the results of the election. See SORUNKE v. ODEBUNMI (1960) 5 FSC AT PP 177 AND 178, where Ademola, C.J.N, delivering the judgment of the Federal Supreme Court said: “Finally, in considering ….. whether the election was void under the Ballot Act, Lord Coleridge said at page 751 of the judgment: If this proposition be closely examined it will be found to be equivalent to this, that the non-observance of the rules or forms which is to render the election invalid, must be so great as to amount to a conducting of the election in a manner contrary to the principle of an election by ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or in other words, the result of the election. When Lord Coleridge refers to a majority of voters, he cannot mean to say that non-compliance may be overlooked unless it affects over half of the votes cast. He referred to a non compliance, which “affected the majority of voters, or in other words, the result of the election.” It cannot be doubted that here Lord Coleridge means that those electors wishing to vote who formed a majority in favour of a particular candidate must have been prevented from casting a majority of votes in his favour with effect. This does not require that all their votes must have been disallowed; it will be sufficient if enough of their votes are disallowed to give another candidate a majority of valid votes.” See also the cases of BUHARI & ANOR V. OBASANJO & ORS (2005) LPELR-815 (SC) and CPC V. INEC & ORS (2011) LPELR-8257 (SC).

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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ELECTION SHALL NOT BE INVALIDATED BY MERE REASON THAT IT WAS NOT CONDUCTED SUBSTANTIALLY; IT MUST SHOW THAT IT AFFECTED THE ELECTION RESULT

In Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1, Belgore, JSC, said at page 191:– “It is manifest that an election by virtue of section 135(1) of the Act shall not be invalidated by mere reason it was not conducted substantially in accordance with the provisions of the Act, it must be shown clearly by evidence that the non-substantiality has affected the result of the election. Election and its victory, is like soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figures, i.e. votes, that the compliance attracted or omitted. The elementary evidential burden of ‘The person asserting must prove’ has not been derogated from by s.135(1). The petitioners must not only assert but must satisfy the court that the non-compliance has so affected the election result to justify nullification.”

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ONLY ASPIRANT CAN CHALLENGE PRIMARIES OF A PARTY AND MUST BE HIS OWN PARTY

In AL-HASSAN V. ISHAKU (2016) 10 NWLR (PT. 1520) 230, this court per Peter-Odili, JSC in interpreting Section 87(9) of the Electoral Act, 2010 (as amended) at 281, Paras DH, held thus: “Indeed, this court has settled the matter in a plethora of judicial authorities that it is only candidate/aspirant at the primaries of a party that has the locus standi to complain about the conduct of such primaries and so, the grouse of the appellants have nothing to stand on as they are clearly interlopers in regard to how the 1st respondent emerged as candidate and also how, where and when the 2nd respondent produced its candidate. Therefore, no matter how loudly the appellants shout on the irregularity, impropriety of the primaries of the 1st and 2nd respondents, the noise will remain unheard and unattended to, coming from those whose voices ought not to be heard in the internal matters of another. I refer to the following cases for assistance being: Onuoha v. Okafor (1983) 14 NSCC 494, (1983) 2 SCNLR 244; Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) 310; Ardo v. Nyako (2014) LPELR 22878 (SC), (2014) 10 NWLR (Pt. 1416) 591; Emeka v. Okadigbo (2012) 18 NWLR (Pt.1331) 55 at 88; PDP v. Sylva (2012) All FWLR (Pt.637) 606 at 654, (2012) 13 NWLR (Pt. 1316) 85.”

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PARTY WHO ALLEGES NONCOMPLIANCE HAS THE LEGAL BURDEN

It is trite that a Petitioner who alleges non-compliance with Electoral Act has the legal burden to establish such non-compliance and show how the non-compliance substantially affected the result of the election. See: LADOJA v AJIMOBI (2016) LPELR-40658(SC) at page 29, paras. A E; and SHINKAFI V YARI (2016) LPELR-26050(SC) at pages 19 – 20, para. C.

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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INVALID NOMINATION PROCESS CANNOT PRODUCE A VALID CANDIDATE FOR AN ELECTION

It is my thinking, and I hold the firm view on this, that by Section 29(1) of the Electoral Act 2022, the sponsorship referred to in Section 65(2)(a) & (b) of the Constitution of Nigeria 1999 (as amended), means nothing else than a valid sponsorship by a political party. It cannot be otherwise. Thus, a sponsorship by a political party which results from an invalid nomination process would be incapable of meeting the stringent requirement of Section 65 (2) (a) & (b) of the Constitution of Nigeria 1999 (as amended). Therefore, a person who is shown to have emerged from an invalid primary or nomination process of a political party as required by law is not and cannot be said to have been sponsored by that political party since such a sponsorship is invalid by virtue of Section 65 (2) (a) & (b) of the Constitution of Nigeria 1999 (as amended), and I so hold firmly. The law is and has always been, that a primary election of a political party conducted in contravention of the provisions of Section 84 (5) (c) (i) of the Electoral Act 2022, as where for instance such a primary election of the 2nd Appellant for a Federal Constituency was on 25/5/2022 at the Aladinma Shopping Mall, Owerri, Imo State a location outside the Ehime Mbano Ihitte Uboma Federal Constituency, is a nullity and of no legal consequence whatsoever. It follows therefore, a candidate who purportedly emerges from such an illegal primary election is not and cannot be said to be qualified to contest an election conducted under the Electoral Act 2022 by INEC. He remains disqualified for all purpose and if inadvertently declared and returned elected in an election conducted by INEC, which on its own has no power to disqualify him, and if he is challenged before an Election Tribunal, his declaration and return would be nullified and the candidate with the second highest lawful votes cast at the questioned election would be declared and returned at the winner of such an election by the Election Tribunal, or this Court where the lower Tribunal fails to do so. See Section 136 (2) and (3) of the Electoral Act 2022. See also Hon. Jerry Alagbaoso v. Independent National Electoral Commission & Ors. (2023) LPELR-59702 (SC), Hon. Nnamdi Thankgod Ezeani v. Jones Onyeneri & Ors. (2023) LPELR-59701(SC).

— B.A. Georgewill JCA. Okeke, PDP v. Nwachukwu, Labour Party, INEC (CA/ABJ/EP/IM/HR/86/2023, November 04, 2023)

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