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ONLY POLLING UNIT AGENT CAN GIVE TESTIMONY OF WHAT TRANSPIRED IN THE POLLING UNIT

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In PDP & ANOR V INEC & ORS (2019) LPELR-48101(CA), this Court Per Agim, JCA (as he then was) held that it is only a Polling Unit agent or a person who was present at a Polling Unit during polls that can give admissible evidence of what transpired during the poll in that unit. See also GOYOL & ANOR V. INEC & ORS (2012) 11 NWLR (PT. 1311) 207, 218 and BUHARI V. INEC & ORS (PT.1120) 246, 424 … Under our law, specifically in Section 43 of the Electoral Act, 2022, Polling Agents are permitted to be appointed by Political Parties for each Polling Unit and collation centre. The wisdom in this is for each of the political parties involved in an election to be represented by its own agents. The duties of an agent are to represent the interest of his/her principal. Having regard to the fact that no mortal man can be in all the places at the same time, the law allows political parties to have their agents at all polling units and collation centres. It is therefore not anticipated by the law for any political party to appoint an octopus agent with his tentacles in all the polling units and collation centres. This is humanly not practicable. When, therefore, evidence is required to prove what happened in any polling unit or a collation centre, it is only the agent who witnessed the anomaly or the malfeasance that can legally and credibly testify. See BUHARI V. OBASANJO (SUPRA); OKE & ANOR V. MIMIKO (SUPRA) AND ANDREW V. PDP (SUPRA).

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

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THE PROVISIONS OF THE FEDERAL HIGH COURT CIVIL PROCEDURE RULES ARE SUBJECT TO THE EXPRESS PROVISIONS OF THE ELECTORAL ACT

Permit me to still say a word or two of my own on Petitioners’ contention that Order 3 Rules 2 and 3 of the Federal High Court (Civil Procedure) Rules 2019 permitting parties to file witness deposition of a subpoenaed witness even after commencement of their action applies automatically to election petitions by virtue of Paragraph 54 of the First Schedule to the Electoral Act 2022, so the Witnesses statement of their witnesses filed by them after hearing of the petition had long commenced were in order. In the first place, Paragraph 54 of the First Schedule to the Electoral Act 2022 simply states as follows: Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action. (Italics ours) This provision clearly makes application of the Civil Procedure Rules of the Federal High Court in election petitions subject to the express provisions of the Electoral Act.” It is not the other way round of modifying provisions of the Act to agree with the Rules of the Federal High Court as suggested by Petitioners’ counsel. That much, Paragraph 54 further clarifies by stating that even where the Federal High Court Rules are considered applicable, they “shall [only] apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act.” What all that means is that, where there is express provision in the Act on a particular situation, as it clearly is in Paragraph 4(5)(b) of the First Schedule to the Electoral Act 2022 that says the election petition shall be accompanied by Written statements on oath of the witnesses,” the provisions of the Federal High Court (Civil Procedure) Rules will not apply.

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

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IF THE RESULT OF AN ELECTION IS NOT AFFECTED SUBSTANTIALLY, THE PETITION WILL FAIL

If there is evidence that despite all the non-compliance with the Electoral Act, the result of the election was not affected substantially, the petition must fail. In other words, the Election Tribunal, must, as a matter of law, dismiss the petition; and that accords with section 146(1) of the Electoral Act.

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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GROUND; GROUND FOR QUESTIONING AN ELECTION

It is trite law, that a Petitioner is required to question an election on any of the grounds set out in Section 134 (1) of the Electoral Act, 2022. For ease of reference, Section 134(1) of the Electoral Act, 2022 provides as follows: “An election may be questioned on any of the following grounds – a. A person whose election is questioned was at the time of the election not qualified to contest the election; b. The election was invalid by reason of corrupt practices and non-compliance with the provisions of this Act; or c. The Respondent was not duly elected by majority of lawful votes cast at the election. What then is the meaning of the word “ground”? In the case of KALU VS CHUKWUMERIJE (2012) 12 NWLR (PT. 1315) 425 AT 485, the Court of Appeal per Owoade, JCA puts it succinctly, thus: “The Compact Edition of the Oxford English Dictionary (1971) US reprint (1988) defines the word “Ground” in numerous terms and with an array of examples at pages 1214 to 1225 as follows: “Ground”: (a) The fundamental constituent or the essential part of anything. (b) A fundamental principle, also the elements or rudiments of any study or branch of knowledge. (c) A circumstance on which an opinion, inference, arguments, statement or claim is founded, or which has given rise to an action, procedure or mental feeling, a motive often with additional implication. A valid reason justifying motive or what is alleged as such.” Thus, a ground in the context of an election petition, is the fundamental reason, basis or justification for questioning the election. Before a party can question an election, his petition must fall within the grounds specified by the Electoral Act 2022. See the following cases: OYEGUN VS IGBENEDION & ORS (1992) 2 NWLR (PT. 226) 947; OKONKWO VS INEC & ORS (2003) 3 LRECN 599; ABUBAKAR VS INEC (2020) 12 NWLR (PT. 1737); and MODIBO VS USMAN (2020) 3 NWLR (PT. 1712) 470.

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

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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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THERE IS A REBUTTABLE PRESUMPTION THAT AN ELECTION RESULT DECLARED BY A RETUNING OFFICER IS CORRECT

Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. (See Omoboriowo v Ajasin (1984) 1 SCNLR 108; Jalingo v Nyame (1992) 3 NWLR (Part 231) 538; Finebone v Brown (1999) 4 NWLR (Part 600) 613; Hashidu v Goje (2003) 15 NWLR (Part 843) 361 and Buhari v Obasanjo (2005) 13 NWLR (Part 941) 1).

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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REGISTER OF VOTERS IS REQUIRED TO PROVE NO ACCREDITATION OF VOTERS

It is clear from the provisions of S.47(1) and (2) of the Electoral Act 2022 and Regulations 14(a) and (b), 18(a) and (b), 19(b) and (e) that the Register of voters for each polling unit is relevant evidence to prove the alleged non accreditations of voters in the 744 polling units on the election day. It is worth stating that in the event of a conflict between the record of accredited voters in the BVAS machine and ticked names in the Register of voters due to human errors in the ticking of the names in the Register of voters, the BVAS Record shall prevail.

— E.A. Agim, JSC. Oyetola v INEC & Ors. (2022) – SC/CV/508/2023

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