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ONLY A PRACTICE WHICH IS CONTRARY TO THE ELECTORAL ACT CAN BE A GROUND TO QUESTION AN ELECTION

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As I stated earlier, the electronic transmission of results of an election is not expressly stated anywhere in the Electoral Act, but was only introduced by the 1st Respondent in its Regulations and Guidelines, 2022 and in the INEC Manual for Election Officials, 2023. By Section 134(2) of the Electoral Act, 2022 only an act or omission which is contrary to the Electoral Act, 2022 can be a ground for questioning an election. Thus, complaints relating to non-compliance with provisions of the Regulations and Guidelines or the Manual of Election Officials are not legally cognizable complaints for questioning an election. In interpreting Section 138(2) of the Electoral Act, 2010, which is similar to Section 134(2) of the extant Electoral Act, 2022, the Supreme Court held in NYESOM V PETERSIDE (supra), at page 66 67, paras. F-C, as follows: “The above provisions appear to be quite clear and unambiguous. While the Electoral Commission is duly conferred with powers to issue regulations, guidelines or manuals for the smooth conduct of elections, by Section 138(2) of the Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election.” See also: JEGEDE v INEC (2021) LPELR-55481(SC) at 25 – 26 at paras. A – D.

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

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SPONSORSHIP OF A CANDIDATE FOR AN ELECTION IS AN INTERNAL AFFAIR OF THE PARTY

The courts have held in a plethora of cases that the issue of membership of a political party is an internal affair of the political party. It has been consistently held, that it is only the party (in this case, the 3 rd Respondent), that has the prerogative of determining who are its members and the 3 rd Respondent, having sponsored the 2 nd Respondent as its candidate for the Governorship Election in Kano State on the 18 th of March 2023, the 2 nd Respondent has satisfied the requirement of being a member of the 3 rd Respondent as provided for in S134 (1) (a) of the Electoral Act 2022. Consequently, it has been held, that is not within the right of the Petitioner at this stage and after the nomination, sponsorship of the 2 nd Respondent by the 3 rd Respondent as its candidate, to question the 2 nd Respondents membership of the 3 rd Respondent, as it is an internal affair of the party.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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ELECTION ARE SUI GENERIS

It is well settled that election matter are sui generis with a special character of their own, quite different from ordinary civil or criminal proceedings. They are governed by their own statutory provisions regulating their practice and procedure. See Hassan v. Aliyu (2010) All FWLR (Pt. 539) 1007, (2010) 17 NWLR (Pt. 1223 ) 547; Ehuwa v. OSIEC (2006) All FWLR (Pt. 298) 1299, (2006) 18 NWLR (Pt. 1012) 544.

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

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HOW TO PROVE FALSIFICATION OF AN ELECTION RESULT

In order to establish falsification of election result, the Petitioner must produce in evidence two sets of results; one genuine and the other false. See: KAKIH v PDP & ORS (2014) LPELR-23277(SC) at pages 51-52, paras. C-C; and NWOBODO v ONOH (1984) LPELR-2120(SC). Indeed, in ADEWALE v OLAIFA (2012) 17 NWLR (Pt. 1330) 478 at 516, this Court held that: “To prove falsification of results of an election, two sets of results one genuine and the other false must be put in evidence by the party making the accusation. After putting in evidence the two sets of results, a witness or witnesses conversant with the entries made in the result sheets must be called by the party making the accusation of falsification or forgery of results of the election to prove from the electoral documents containing the results of the election how the results of the election were falsified or made up.”

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

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INEC GUIDELINES CANNOT BE ELEVATED ABOVE THE ELECTORAL ACT

As held by this court, the INEC directives, guidelines and manual cannot be elevated above the provisions of the Electoral Act as to eliminate manual accreditation of voters. This will remain so until INEC takes steps to have the necessary amendments made to bring the usage of the card reader within the ambit of the substantive Electoral Act. These issues are accordingly resolved in favour of the appellant.

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

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ORDINARY COURTS HAVE JURISDICTION IN PRE-ELECTION MATTERS

The same approach adopted by the Respondents in Amaechi’s case was also adopted in the instant case. The belief was that if elections were conducted that would put an end to the appellants case or “kill his case”. The jurisdiction of ordinary court in pre-election matters is sacrosanct and the holding of such an election when the action was pending would not deprive the ordinary court of its jurisdiction to conclude the matter, even to the appeal court. It is to be noted that the appellant in this case took steps immediately he was aware of this substitution. He instituted this action before the conduct of the election and had been steadfast, believing in the judicial process that justice would be done. He did not stand by and allowed the party to be heard to fight for the election and therefore seek to take the benefit of the result of the election by proceeding to seeks for the enforcement of his right after the election. All what I have been labouring to state is that he did not sleep over his right. If this action had been instituted after the conduct and declaration of the election I would have held that the jurisdiction of the trial court to hear the pre-election matters has been over taken by event.

– Coomassie JSC. Odedo v. INEC (2008)

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INTERPRETATION OF SECTION 134(2) OF THE CFRN

It is obvious that states of the Federation and the Federal Capital Territory, Abuja were lumped together as a group by Subsection (2) (b) above. What differentiates the constituents of the group is their names and nothing more. One of them is called Federal Capital Territory and the rest called states of the Federation. Subsection (2) (b) clearly refers to two thirds of all the constituents of the group enumerated therein as the minimum number from each of which a candidate must have one-quarter of the votes cast therein. There is nothing in Subsection (2)(b) that requires or suggests that it will not apply to the areas listed therein as a group. The argument of Learned SAN that the provision by using the word “and” to conclude the listing of the areas to which it applies has created two groups to which it applies differently is, with due respects, a very imaginative and ingenious proposition that the wordings of that provision cannot by any stretch accommodate or reasonably bear. If S. 134(2) of the 1999 Constitution intended that the Federal Capital Territory, Abuja should be distinct from states of the Federation as a distinct group it would not have listed it together with states of the Federation in (b). Also, if S. 134(2) had intended having one-quarter of the votes cast in the Federal Capital Territory Abuja as a 4 separate requirement additional to the ones enumerated therein, it would have clearly stated so in a separate paragraph numbered (c). It is glaring that S.134(2) prescribed two requirements that must be cumulatively satisfied by a Presidential candidate in an election contested by not less than two candidates, before he or she can be deemed duly elected President. It prescribed the first requirement in (a) and the second one in (b). It did not impose a third requirement and so there is no (c) therein … Such meaning would result a Presidential candidate that has the highest votes cast in the election and not less than one-quarter of the votes cast in not less than two-thirds of 36 states of the Federation or in all the states of the Federation cannot be deemed duly elected as President because he did not have one-quarter of the votes cast in the Federal Capital Territory, Abuja. This certainly violates the egalitarian principle of equality of persons, votes and the constituent territories of Nigeria, a fundamental principle and purpose of our Constitution. Such a meaning is unconstitutional. I think that his said proposition is the result of reading those provisions in isolated patches instead of reading them as a whole and in relation to other parts of the Constitution. Reading and interpreting the relevant provision as a whole and together with other parts of the Constitution as a whole is an interpretation that best reveals the legislative intention in the relevant provision.

— Agim JSC. Peter Obi & Anor. v. INEC & Ors. (SC/CV/937/2023, Thursday the 26th day of October 2023)

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